Arie Gaertner

The moving party brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The plaintiff estate sought costs following a trial where it recovered a portion of the $30 million claimed from the defendant, including an 80% interest in a property.

The defendant counterclaimed for sexual abuse, which was dismissed.

Both parties sought costs.

The court found the plaintiff was the more successful party and entitled to costs.

The court declined to award substantial indemnity costs to either party based on unproven allegations of fraud and sexual abuse, finding the allegations did not amount to reprehensible conduct warranting chastisement.

Applying the factors in Rule 57.01, the court fixed the plaintiff's costs at $800,000 on a partial indemnity basis, reflecting its divided success.

The Estate of William Waters sought the return of over $30 million advanced by the deceased to his wife's personal support worker, Gillian Henry, over a ten-year period.

The Estate argued the funds were investments held on resulting trust, while Henry maintained they were gifts made during a secret intimate relationship.

The court found that the deceased, a sophisticated businessman, intended most of the advances as gifts, except for funds invested in a horse stable business (King of Hearts), which were held on resulting trust.

The court also found that the deceased improperly gifted $2.85 million of his incapacitated wife's money to Henry, which constituted unjust enrichment and must be returned.

Henry's counterclaim for sexual battery was dismissed due to lack of credibility and absence of corroboration required under the Evidence Act.

The defendants brought a motion to compel the plaintiff estate to produce unredacted solicitor files of the deceased, William Waters, arguing that the "wills exception" to solicitor-client privilege should extend to determine the deceased's intent regarding inter vivos transfers.

The estate claimed the transfers were impressed with a resulting trust, while the defendants asserted they were gifts.

The court found that the previous order allowed for disputes over privilege and that applying res judicata to informal case management directions would inhibit the process.

The court extended the "wills exception" from Geffen v. Goodman Estate to this case, finding ambiguity in the deceased's will regarding the nature of the transfers.

It ordered the production of all information shedding light on whether the transfers were gifts, including information on the deceased's capacity and susceptibility to undue influence, subject to a protective order to prevent a fishing expedition for claims against the solicitor.

This endorsement addresses the issue of costs following a successful dependant's support claim under the Succession Law Reform Act.

The applicant sought full indemnity costs, while the respondents argued for partial indemnity.

The court determined that the deceased testator was responsible for the litigation by failing to make adequate provision for the applicant's support, thus justifying costs payable from the estate.

However, considering the applicant's significantly higher settlement offer compared to the trial outcome, the respondents' more reasonable offer, and the applicant's excessive legal staffing, the court awarded costs on a partial indemnity basis, fixed at $160,000.00, inclusive of fees, disbursements, and taxes, payable by the Estate Trustees.

An adult child sought dependant's relief from their deceased mother's estate under the Succession Law Reform Act, claiming inadequate provision for support.

The court found the applicant was a dependant, as the deceased had systematically provided ongoing support, including food, shelter, and financial assistance, due to the applicant's inability to support themselves.

While the deceased's testamentary framework of providing an income stream was deemed appropriate, the amount was found inadequate to meet the applicant's accustomed standard of living.

The court ordered an increase in monthly support, adjusted annually for inflation, and required the applicant to vacate the deceased's condominium, denying a claim for past rent credit.

The defendants moved to set aside an ex parte Mareva injunction and certificates of pending litigation obtained by the plaintiff estate.

The estate alleged that the deceased transferred over $29 million to his personal support worker, which she used to purchase real estate, and claimed the funds were impressed with a resulting trust or obtained through fraud and undue influence.

The defendants argued the plaintiff failed to make full and frank disclosure on the ex parte motion and that the funds were gifts.

The court dismissed the motion, finding the plaintiff made adequate disclosure and established a strong prima facie case, a risk of dissipation of assets, and that the balance of convenience favoured continuing the injunction until trial.

A trial management conference was held to determine the procedures for an upcoming trial regarding an estate application.

The court directed that the trial proceed as a hybrid hearing, with most participants attending in person and one witness testifying virtually.

The court also issued procedural directions regarding the use of CaseLines, the marking of exhibits, and the preparation of a joint document brief.

The defendant moved to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte motion.

The plaintiff claimed a 50% interest in a condominium unit purchased by the defendant, relying on a trust agreement.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure of material facts on the ex parte motion, including the defendant's dispute of the claim and the plaintiff's failure to contribute to expenses.

The court also found the plaintiff failed to prosecute the action with reasonable diligence and that the equities favoured discharging the CPL, as the property was not unique and damages would be an adequate remedy.

The plaintiff brought a motion for leave to amend the statement of claim to correct an alleged misnomer, seeking to substitute his mother as the plaintiff after the limitation period had expired.

A previous motion to add the mother as a plaintiff had been dismissed.

The court dismissed the misnomer motion, finding that the original naming of the plaintiff was intentional and tactical, not an error.

Furthermore, the court held that the motion constituted an abuse of process because it relied on evidence that contradicted the plaintiff's position on the prior motion.

The plaintiff brought a motion to compel answers to questions refused during the cross-examination of the defendant and his father on affidavits filed in support of the defendant's pending motion to discharge a certificate of pending litigation.

The court ordered the defendant to produce his current driver's license as it was relevant to an issue of residence raised by the defendant.

However, the court upheld the refusals regarding the defendant's banking and tax records, finding them irrelevant to the discharge motion and overbroad.

The court also upheld a refusal regarding the defendant's reasons for previously acting in person.

The defendant was awarded partial indemnity costs of $8,500.

The appellant appealed a motion judge's order denying an adjournment and deeming his motion to oppose a certificate of assessment abandoned.

The appellant sought to introduce fresh evidence on appeal regarding his difficulties retaining counsel.

The Divisional Court dismissed the appeal, finding the fresh evidence did not meet the Palmer test and the motion judge made no error in denying the adjournment given the appellant's repeated failures to file materials or comply with court orders over an 11-month period.

The applicant's motion to oppose the confirmation of an Assessment Officer's Certificate of Assessment was deemed abandoned due to repeated non-compliance with court orders and failure to file materials.

The court declined a further adjournment request from the self-represented applicant and awarded costs of $10,000 plus disbursements of $880.48 to the respondent law firm on a partial indemnity basis.

Following the dismissal of the plaintiff's summary judgment motion against one defendant, that defendant sought costs of $51,010.55.

The court declined to award costs payable forthwith, finding the plaintiff did not act unreasonably or in bad faith in bringing the motion.

Citing access to justice principles and the plaintiff's lack of financial means, the court ordered costs in the cause.

The court deferred the plaintiff's request for costs against another defendant whose counterclaim was dismissed due to being an undischarged bankrupt, requesting further information on whether the bankruptcy trustee was notified.

This endorsement addresses a motion brought by Robert Bilich, a non-party, seeking to enforce Revised Minutes of Settlement from a previously settled trial and to obtain declarations regarding alleged misappropriation of funds by the defendants.

The settlement required the defendants to provide quarterly accountings to investors.

Bilich, claiming to represent an investor, alleged non-compliance.

The court found that the defendants had belatedly provided an accounting, thereby purging any potential contempt.

The court dismissed Bilich's motions, refusing an adjournment for cross-examination, as his true intent was to re-open settled trial issues and pursue allegations of misappropriation, for which he lacked status.

The court affirmed the defendants' ongoing obligation to provide quarterly accountings to investors.

The plaintiff brought a motion for summary judgment against his former real estate solicitor for professional negligence, alleging the solicitor failed to properly advise him regarding a $300,000 gift direction.

The plaintiff also moved to dismiss a counterclaim brought by one of the defendants on the basis that she was an undischarged bankrupt.

The court dismissed the summary judgment motion, finding that genuine issues of credibility and the factual context of the transaction required a trial.

However, the court granted the motion to dismiss the counterclaim, concluding that the defendant lacked the legal capacity to commence the action as an undischarged bankrupt, and the proceeds claimed did not constitute after-acquired property.

The plaintiffs brought a motion for the appointment of an inspector under s. 161 of the Business Corporations Act to investigate two defendant companies.

The defendants opposed, arguing the plaintiffs lacked standing as they were no longer shareholders.

The court found the plaintiffs had standing based on original share certificates.

The court granted the motion, holding that the companies' failure to provide financial statements prior to 2012 raised an index of suspicion of oppressive conduct, meeting the low evidentiary threshold for appointing an inspector.

The inspector's mandate was limited to issues not statute-barred.

The defendant manufacturer brought a motion for security for costs against a corporate plaintiff in a commercial dispute involving alleged breach of a furniture supply arrangement, copyright infringement, and passing off.

The defendant argued that the plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

Applying Rule 56.01(1)(d) of the Rules of Civil Procedure, the court found there was good reason to believe the corporate plaintiff had insufficient exigible assets and that its financial disclosure lacked the required robust particularity.

The court rejected arguments that the merits of the claim or the overlap with the counterclaim made security unjust.

Security for costs was ordered on a step‑by‑step basis, requiring payment into court pending further proceedings.

Following a successful application for the partition and sale of a property, the applicant sought costs on a substantial indemnity basis due to the respondents' delay and failure to comply with prior orders.

The respondents argued the costs claimed were disproportionate and should be deferred to the reference.

The court rejected the deferral and awarded costs to the applicant on a partial indemnity basis, fixing the amount at $35,000 inclusive, noting that the respondents' misconduct had already been addressed through prior admonishments and costs orders.

The defendant brought a motion for summary judgment to avoid liability on a guarantee, arguing the plaintiff suffered no damages because it was a flow-through vehicle and its investors' claims were statute-barred.

The court dismissed the motion as unreasonable and lacking legal foundation.

The plaintiff sought costs on a substantial indemnity basis under Rule 20.06 and based on an unaccepted offer to settle.

The court awarded the plaintiff costs of $37,658.66 on a substantial indemnity basis, finding the defendant's motion was not reasonably brought.