Anya-Deane Tuthill Best

The appellant appealed a decision granting the passing of accounts and approving compensation for the respondent as attorney for property and estate trustee.

The appellant argued the claim for compensation as attorney for property was statute-barred under the Limitations Act, 2002 and that the quantum was excessive.

The Court of Appeal dismissed the appeal, holding that an application for the passing of accounts does not constitute a 'claim' within the meaning of the Limitations Act, 2002, as it does not seek to remedy an injury, loss, or damage.

The court also found no error in the application judge's assessment of the compensation.

The applicant sought compensation for her services as attorney for property prior to the deceased's death and as executor of his estate.

The respondent, the sole beneficiary, opposed the attorney compensation claim, arguing it was barred by the two-year limitation period because the applicant did not claim it annually while the deceased was alive.

The court held that the Substitute Decisions Act does not mandate annual claims and that the limitation period was triggered by the deceased's death, making the claim timely.

The court also rejected arguments to reduce the compensation amounts, awarding the applicant $34,024.29 for attorney compensation and $11,679.00 for executor compensation.

Three siblings sought a certificate of pending litigation against their brother’s home and a preservation order over estate assets, alleging that farmland formerly owned by their parents had been transferred to the brother through undervalued transactions and undue influence over their vulnerable mother.

They claimed the brother later sold the farm and used the proceeds to purchase his current residence, thereby depriving the estate of assets that should have been shared equally among the four siblings.

The respondents argued the applicants knew of the earlier transfers for many years and therefore lacked a reasonable claim to an interest in land.

The court held that the applicants had established a reasonable claim that sale proceeds traceable to the parents’ property were used to acquire the new property and that the equities favoured protection of the assets.

A certificate of pending litigation and preservation order were granted.

Following a successful Rule 21 motion dismissing the plaintiffs’ action for lack of jurisdiction, the defendant sought costs.

The court received written submissions only from the defendant after the plaintiffs failed to respond within the time allowed.

The court reviewed the bill of costs and found the time spent and hourly rates to be reasonable given the motion work, including cross-examinations, pleadings, and preparation.

Applying the Rule 57 factors, the court awarded partial indemnity costs fixed at approximately 55% of a reasonable full indemnity bill.

The defendant brought a Rule 21 motion to dismiss an Ontario action alleging breach of contract and misrepresentation on the basis that the governing contract between the corporate parties contained arbitration and exclusive jurisdiction clauses requiring disputes to be resolved in New Jersey.

The plaintiffs argued the claim against the defendant was personal and therefore outside the contractual forum selection clause.

The court held that the pleadings, read as a whole, demonstrated the dispute arose from the corporate relationship governed by the fabricator agreement, despite the plaintiffs discontinuing the action against the corporate defendants.

No strong cause was shown to avoid enforcement of the contractual arbitration and jurisdiction provisions.

The action could not proceed in Ontario and was dismissed.