Wills, Estates, Trusts Law

The court addressed two applications concerning the will of Sidky Nassif: an interpretation application by Bishop Moussa and a rectification application by Sarwat Mansour, the estate trustee.

The central issue was the disposition of Mr. Nassif's house, specifically whether it should pass to Bishop Moussa as part of the residue or to Mr. Nassif's brother, Shoukry Messieh, after his sister Yvonne Nassif's life estate.

The court found the will ambiguous and that Bishop Moussa's interpretation led to an absurd result inconsistent with the testator's intentions.

Applying the "armchair rule" and considering extrinsic evidence, including solicitor's notes, the court concluded there was a drafting error.

Bishop Moussa's application for interpretation was dismissed, and Sarwat Mansour's application for rectification was granted, amending the will to ensure the house transferred to Shoukry Messieh upon Yvonne Nassif's death.

The applicant, John Walker, sought an order under the Partition Act for the sale of a jointly owned property.

The respondents, Bethany Walker and Matthew Colling, opposed the sale, arguing it would cause them hardship amounting to oppression and requested a stay until an estate trustee was appointed and a Henson trust established.

The court found the respondents failed to demonstrate oppression, noting their inconsistent financial disclosures, the property's deteriorating condition, and the applicant's need for the sale proceeds for his care.

The court granted the order for sale, requiring the respondents to vacate and setting terms for the sale process.

The Public Guardian and Trustee (PGT), acting on behalf of the plaintiff, brought a motion to re-open the case for the limited purpose of providing additional argument on the presumption of resulting trust, an issue they believed was not adequately addressed at trial.

The court allowed the motion, finding no prejudice to the defendants, and ordered the parties to provide additional written submissions on the specific issue.

The applicant, Sandra Van Ruymbeke, executor of Mary Powers' estate, sought orders compelling two respondents (siblings Connie Van Ruymbeke and Susan Salenbien) to pass accounts related to a continuing power of attorney for property, and an order to transfer farm properties from Mary's estate to Mark Van Ruymbeke's estate (represented by Connie as Estate Trustee During Litigation).

The court granted the order for Susan Salenbien to pass accounts, as her role as attorney for property was undisputed.

However, a fundamental dispute arose regarding whether Mark Van Ruymbeke was ever granted or acted under a power of attorney for property, which impacts the court's jurisdiction and potential limitation period defenses.

The court found the power of attorney document ambiguous and ordered a trial of an issue to determine Mark's status and conduct, adjourning the request for Connie to pass Mark's accounts until after this determination.

The transfer of farm properties was also addressed with specific conditions.

The Litigation Administrator for the Estate of Rita Persaud brought a motion to enforce a settlement agreement against Chabiraj Persaud, the deceased's son, concerning the sale of a residential property.

The Litigation Administrator alleged that Chabiraj breached the agreement by further encumbering the property, increasing existing charges, and improperly withdrawing funds for an unsecured line of credit from the sale proceeds.

The court found that Chabiraj breached the settlement agreement by taking out new mortgages/lines of credit and improperly deducting funds, awarding damages of $220,578.48 plus pre-judgment interest to the Estate.

The court declined to find a breach regarding a commercially unreasonable realtor commission due to lack of evidence and also denied the request for injunctive relief.

The appellant appealed a lower court's decision, challenging the admissibility of a recording and the finding that a joint tenancy had been severed.

The Court of Appeal rejected the argument regarding the recording's inadmissibility, finding it relevant and admissible.

The court also found no basis to interfere with the application judge's decision on joint tenancy severance, as it was a fact-specific inquiry.

The appeal was dismissed, and costs were awarded against the estate, noting the litigation was necessitated by the deceased's actions.

The appellant appealed from an order of the Superior Court of Justice dismissing his application against his daughters regarding the transfer of a mortgage from a family company to a family trust.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the order arose from an oppression application under the Business Corporations Act, for which the proper appellate route is to the Divisional Court, not the Court of Appeal.

The court rejected the appellant's arguments that section 6(2) of the Courts of Justice Act or Rule 6.01(1) of the Rules of Civil Procedure permitted the Court of Appeal to hear the appeal, and declined to reconstitute itself as the Divisional Court.

The appeal was transferred to the Divisional Court.

The applicant sought summary judgment for $500,000 from the deceased husband's estate, representing a life insurance policy he was contractually obligated to maintain for her benefit under a separation agreement but failed to obtain.

The respondent estate argued the clause was merely security for spousal support and subject to the Succession Law Reform Act clawback.

The court found the life insurance clause to be a "stand-alone" obligation, not solely security for support, and granted summary judgment for the applicant for the $500,000.

The issue of retroactive cost of living adjustments was reserved for further submissions.

An appeal from a motion judge's decision to dismiss third-party claims against all persons except Barton Thomas Burron in a fraud matter involving Saint Luke Lutheran Church, an unincorporated association.

The motion judge had dismissed the third-party claims on the basis that only Burron had a distinct fiduciary duty and independent standard of care.

The Court of Appeal allowed the appeal, finding that complex issues regarding the status of the plaintiff, the application of law to unincorporated associations, the Negligence Act, and the Rules of Civil Procedure required a full evidentiary record and should proceed to trial rather than be dismissed on a motion.

The applicant, Rosemary Whelan, brought a motion to transfer a passing of accounts proceeding from Toronto to Ottawa.

The Estate Trustee, Royal Trust Corporation of Canada, and other interested parties opposed the transfer.

The court found the motion premature, noting that the application to pass accounts had just commenced in Toronto, and further procedural steps, such as filing objections and a hearing for directions, were pending.

The judge emphasized that a definitive determination of venue, particularly concerning the need for live witnesses, was not yet possible.

The motion for transfer was dismissed without prejudice, with costs reserved to the judge hearing the passing of accounts.

The applicant, as estate trustee of Doreen Honour Stuart's estate, brought an application to pass accounts for the estate of Andrew Hargrave Stuart.

The beneficiaries objected.

This endorsement provides directions for the trial and mediation of the application, resolving disagreements between the parties regarding identification of parties, issues to be tried, documentary disclosure, interpretation of the will, mediation timing and costs, examinations for discovery, manner of leading evidence at trial, production of personal income tax returns, and amounts to be retained by the estates.

The court ordered a separate application for will interpretation, permitted examinations for discovery, and set out a summary trial procedure.

This endorsement addresses costs arising from an unsuccessful and untimely motion brought by Sarah Werner to vary an order appointing a litigation guardian for her mother, Ida Rubin.

The court found Ms. Werner's proposed motion to be an obstructionist tactic, lacking merit, and brought in breach of a scheduling order.

Due to Ms. Werner's reprehensible litigation conduct, the court awarded full indemnity costs against her to the applicant and litigation guardian.

Additionally, costs were awarded to other parties (Morris Rubin and The Bank of Nova Scotia Trust Company) from the estate, with these amounts to be allocated solely to Ms. Werner's share.

The plaintiffs brought a motion for default judgment against Melissa Gibson-Heath for theft from an elderly resident and for summary judgment against DC Jain & Sons Inc. on the basis of vicarious liability.

The court granted default judgment against Gibson-Heath for the unrecovered stolen amount of $155,468.46 plus pre-judgment interest and costs, declaring the judgment to survive bankruptcy due to fraud and breach of fiduciary duty.

However, punitive damages against Gibson-Heath were denied given her prior criminal sentence.

The motion for summary judgment against DC Jain & Sons Inc. was dismissed, as the evidentiary record was deemed insufficient to determine vicarious liability, particularly regarding the arrangement of care services and the employer's creation of risk.

A case conference was ordered to further develop the record.

The Estate of Frank Calderone brought a motion seeking leave to amend its crossclaim against Joseph Calderone to introduce new allegations of fraud and fraudulent concealment related to a family business syndicate (CBS).

The court dismissed the motion, finding that the new claims were statute-barred under the Limitations Act, 2002, as the Estate failed to exercise reasonable diligence to discover the claims by December 2011.

The court also addressed ancillary requests, granting partial production of documents from PricewaterhouseCoopers LLP, adjourning the request for documents from McMillan LLP, granting leave to examine non-party David Young (a lawyer), and ruling on various refusals from Joseph Calderone's examination for discovery.

The action was assigned to case management.

The court heard urgent applications and a cross-application for the appointment of a guardian for personal care and property for an incapacitated individual.

The primary applicant sought guardianship to challenge a doctor's life support plan at the Consent and Capacity Board, while the cross-applicant (spouse) intended to consent to the plan if appointed.

The court dismissed both applications for guardianship of personal care, finding that the need for decisions could be met by a less restrictive alternative, specifically by allowing the Consent and Capacity Board to determine the appropriate substitute decision-maker.

The court emphasized that the Board is the expert body for such life-and-death decisions.

Applications for guardianship of property were adjourned.

The primary applicant was ordered to pay partial indemnity costs to the spouse and a statutory fee to the Public Guardian and Trustee, partly due to the inappropriate conduct of counsel and the lack of admissible evidence.

The plaintiff, William MacLeod, sought to remove the Public Guardian and Trustee (PGT) as his statutory guardian of property following a certificate of incapacity.

The court, acting as case management judge, provided detailed procedural directions for MacLeod's application, emphasizing the need for proper evidence and adherence to a schedule.

MacLeod attempted to schedule an urgent hearing without following these directions.

The court vacated the urgent hearing and reiterated that no hearing would be scheduled until the established procedural steps were completed, including the delivery of evidence and legal arguments.

The court also clarified that MacLeod lacked capacity to commence or continue other litigation while the PGT remained his guardian, with the sole exception of the application to remove the PGT.

The defendants sought leave to add the Estate of Gabriel Zimmerman as a party, direct payment of withheld rental income into court, and be released from liability.

The plaintiffs opposed, arguing the estate's claim was statute-barred.

The court dismissed the motion, finding the estate's claim was subject to the two-year limitation period under the Limitations Act, which had expired, and that the Trustee Act did not apply to extend the period.

The court also declined to apply the Doctrine of Special Circumstances, noting the claim had been known for years without compelling explanation for inaction.