Archie J. Rabinowitz

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.

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.

The appellants, a law firm and its principal lawyer, appealed a motion judge's decision denying them a fee premium and reimbursement of disbursements for their representation of a catastrophically injured client under a disability.

During the appeal, the parties reached a settlement for a reduced fee premium and full disbursements.

The Court of Appeal approved the settlement, finding it was in the best interests of the person under a disability and fairly compensated the lawyers for their services and risk.

The testator executed a will in Spain in 2002 dealing with her European property.

In 2006, she executed a Canadian will dealing with her entire estate, which contained a standard revocation clause.

The drafting solicitor was unaware of the Spanish will.

Following her death, the appellants sought to introduce third-party affidavit evidence to prove the testator did not intend to revoke the Spanish will.

The application judge ruled the evidence inadmissible.

The Court of Appeal dismissed the appeal, affirming the common law rule that direct extrinsic evidence of a testator's intention is inadmissible to construe an unambiguous will.

Following a costs endorsement, the applicant sought costs for preparing his costs submissions, arguing that his offers to settle the quantum of costs exceeded the costs ultimately awarded to the respondents.

The applicant relied on Rule 49.02(2) of the Rules of Civil Procedure.

The court dismissed the request, holding that while Rule 49 applies to motions, it does not apply to offers to settle the quantum of costs of a motion.

No costs were awarded to the applicant.

The moving party sought leave to appeal an interlocutory decision appointing a trust company as her interim guardian of property, pending an application by her daughters to be appointed as guardians.

The moving party argued the motions judge erred by ignoring her valid Power of Attorney and failing to find strong evidence of misconduct before appointing a third party.

The Divisional Court denied leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the motions judge's decision, which was based on the incapable person's best interests and allegations of self-dealing.

Following the dismissal of the appellant's motion for leave to appeal an order regarding a capacity examination, the respondents sought substantial indemnity costs.

The court declined to award substantial indemnity costs, finding that while the appellant filed an unnecessarily voluminous 90-page factum, it did not create a significant additional burden.

Costs were awarded on a partial indemnity basis, fixed at $8,000 each for two respondents and $5,000 for the third, reflecting the moderate complexity of the issues and the principle of proportionality.

The applicant sought leave to appeal an order dismissing his motion to require his parents to undergo capacity assessments and to allow him to examine his mother for discovery.

The underlying dispute involved the validity of powers of attorney executed by the mother, who suffered from Alzheimer's disease.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision.

The court held that section 79 of the Substitute Decisions Act, rather than section 105 of the Courts of Justice Act, governed the request for a capacity assessment, and that the motions judge properly exercised his discretion in refusing the assessments and discovery.