Anya-Deane Tuthill Best

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.