Archie J. Rabinowitz

The court considered a motion by the JDH Defendants for production and disclosure of documents over which the plaintiffs claimed privilege in an oppression and breach of fiduciary duty action.

The court found that the plaintiffs met their initial onus to establish litigation privilege over communications from and after December 16, 2019, and denied the defendants’ request for the court to review the 282 documents.

The court ordered both sides to produce redacted versions of privileged documents (excluding those with current litigation counsel and post-litigation communications) and to meet and confer regarding any non-privileged questions.

No costs were awarded to either side.

The court considered a motion by the plaintiffs for interim and interlocutory relief restraining the use of corporate funds by J.D.H. Holdings Limited to pay the defendants' legal and professional fees in an oppression action.

The plaintiffs also sought an accounting and repayment of such funds, or, in the alternative, a partial reimbursement to Jonshal Enterprises Inc. The court dismissed the motion, finding that the plaintiffs had not established irreparable harm or overwhelming fairness concerns to justify the relief sought, and that any damages could be addressed at trial.

This decision concerns an application by Dr. Kelly Diane Riedel regarding the validity and administration of the Dmyant Sangha Family Trust and the Sangha Property Trust.

Dr. Riedel alleges that the trusts are shams, created to defeat her family law entitlements, and seeks various forms of relief including the production of legal records and the conversion of the application to an action.

The court addresses the legal standards for sham trusts, the relevance of disputed facts, and the entitlement to privileged documents.

The application to convert to an action is dismissed, and the court sets out a process for determining threshold questions regarding the validity of the trusts.

The Estate Trustee of Nazzareno Coccia's estate sought the court's advice and direction regarding the interpretation of the deceased's Ontario Will and its effect on a prior Italian Will, particularly concerning real property in Italy.

The court determined that the Ontario Will, containing a revocation clause, effectively revoked the Italian Will.

Furthermore, the court found that the Ontario Will created a partial intestacy regarding the Italian real property, as the term "money" in the will could not be broadly construed to include land.

Consequently, the Italian real property passed to the deceased's nieces (next of kin) under Italian intestate succession law, as directed by conflict of law principles (lex situs).

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

The Court of Appeal for Ontario heard a motion for a stay of a lower court order pending appeal.

The lower court had appointed a litigation guardian and guardian of property for an incapable 100-year-old individual, removed her counsel, and ordered costs.

The moving parties (the incapable individual and her son) sought to stay this order.

The court applied the three-part test for a stay, finding no serious issue to be tried regarding the incapacity finding or the guardian's appointment, especially given prior findings of unconscionable procurement of assets by the son.

The court also found no irreparable harm would be suffered by denying the stay, as the appointed guardian is accountable to the court.

The balance of convenience favored allowing the lower court's order to take effect.

Consequently, the motion for a stay was dismissed.

The applicant, as estate trustee and trust trustee, sought declarations regarding the validity of a photocopy of a will, the nature of a jointly held property, and the validity of a "pour-over" clause in the will.

The court declared the photocopy will valid and the joint tenancy property a true gift by right of survivorship.

However, the court found the pour-over clause invalid, preferring the British Columbia approach which emphasizes strict formality requirements for testamentary dispositions, leading to the residue of the estate being distributed by intestacy.

Costs were awarded to the applicant from the estate.

The applicant son worked on his father's farm for 27 years for minimal wages, relying on his father's promise of a house and a parcel of land.

After the father's death, the farm was placed in a marital trust, and the son was evicted by his mother.

The son sought equitable relief and dependants' support.

The court found that the son established proprietary estoppel and awarded him a one-third interest in the farm.

The court also held that the estate trustees were required to sell the farm, as the mother had failed to pay the maintenance expenses required by the will to maintain her right to occupy the property.

The Estate Trustees moved for court approval of a Memorandum of Understanding (MOU) and Minutes of Settlement (MOS), and to enforce the MOU against a beneficiary.

The court found that the beneficiary's consent to the MOU was conditional on obtaining independent legal advice, which was subsequently withdrawn.

The MOS, negotiated without all parties, contained terms significantly different from the MOU.

The court ruled that the MOU was void due to the withdrawal of conditional consent, and the MOS could not be approved as it was not agreed to by all parties and contained inconsistent terms.

The motion was dismissed, and the parties were directed to update estate information for further proceedings.

Following a successful application to rectify a will, the court determined the appropriate costs allocation among the parties.

The estate trustee sought costs against two respondents, while one respondent sought costs against the estate or the drafting solicitor.

Applying Rule 58.06 and Rule 49 of the Rules of Civil Procedure, the court considered the successful party principle, settlement offers, the conduct of the parties, and proportionality.

The court concluded that the litigation arose from the testator’s own actions and therefore reasonable costs should be borne by the estate.

Costs were awarded to the estate trustee and one respondent from the estate, while another unsuccessful respondent was denied costs.

The applicant estate trustee sought to rectify the deceased's secondary will, which dealt solely with her house.

Due to a drafting error by the solicitor, the secondary will omitted a residue clause and duplicated bequests made in the primary will, which would have resulted in a partial intestacy benefiting estranged children.

The estranged children opposed the application, arguing the will should be interpreted as written.

The court found that the drafting solicitor made a clerical error that did not reflect the testator's intentions, and ordered the will rectified to include the residue clause and remove the duplicated bequests.

The applicant sought rectification of a will after the drafting solicitor inadvertently failed to include a bequest of the testator’s residence to the applicant despite receiving explicit instructions to do so.

Evidence included affidavits from the applicant and the drafting solicitor confirming the omission resulted from clerical error during the preparation of the final will.

The court reviewed the equitable doctrine of rectification and the circumstances in which courts may correct drafting mistakes where the testator’s instructions were not implemented.

Relying on Ontario authorities permitting rectification where solicitor error prevents a will from reflecting the testator’s intention, the court found the omission clearly established and unchallenged.

The will was rectified to include the bequest of the residence to the applicant.

The defendants brought motions to strike the plaintiffs' statement of claim for professional negligence.

The plaintiffs alleged negligence against a lawyer and a capacity assessor involved in a guardianship application for the plaintiff's mother.

The court struck the statement of claim in its entirety, finding it disclosed no reasonable cause of action against the capacity assessor or the lawyer for two of the plaintiffs.

The court also found the pleading was scandalous, frivolous, and vexatious.

The corporate plaintiff's claim was additionally struck for failing to be represented by counsel.

One plaintiff was granted leave to amend the claim against the lawyer defendants only.