Bradley Phillips

The appellant appealed an interlocutory order requiring the production of the deceased's counselling records from 2005 to 2009 in a will challenge alleging undue influence.

The Divisional Court allowed the appeal, finding the motion judge erred in law by applying a low threshold that permitted a fishing expedition for sensitive personal information.

The court also found a palpable and overriding error in relying on the absence of evidence of undue influence in the two years prior to the will's execution to justify broader disclosure.

The order for production was set aside, and costs were awarded to the appellant.

The plaintiff judgment creditor brought a motion to enforce a prior judgment which found that the defendant debtor fraudulently conveyed his interest in a jointly-owned property to his wife.

The wife subsequently sold that property and purchased a new one.

The court ordered the sale of the new property, finding that the plaintiff was entitled to 50% of its net proceeds, including any increase in value.

The court declined to grant the wife additional time to obtain financing, balanced carrying costs against occupation rent, and awarded costs to the plaintiff.

The court addresses costs and pre-judgment interest following a trial regarding the administration of the estate of Ciriaco Forgione.

The applicants, Amato and Luisa Forgione, challenged the conduct of the respondent, Anne-Marie Alonzi, as estate trustee and attorney for property.

The court found that Ms. Alonzi was entitled to substantial indemnity costs from the estate, rejecting the applicants' allegations of wrongdoing.

The court declined to award pre-judgment interest to Ms. Alonzi due to her failure to keep proper records, which necessitated the passing of accounts.

This decision concerns the passing of accounts and compensation claims by Anne-Marie Alonzi, attorney and estate trustee for the late Ciriaco Forgione.

The court reviews the factual and legal context of the family dispute, the duties and compensation of attorneys and estate trustees, and the management of the estate’s properties.

The court finds that, despite record-keeping deficiencies and family conflict, Ms. Alonzi and her husband provided exceptional care to Mr. Forgione.

The court reduces compensation for failure to properly account for cash payments but upholds the majority of the claims, recognizing the challenging circumstances and the value of the services provided.

This case involves a challenge to the validity of a holograph will, which disinherited the applicant, Lara Korba, in favour of her brother, the respondent Ian Farooque, who was also named estate trustee.

Lara alleged lack of testamentary capacity, knowledge/approval, and undue influence.

The application sought various remedies, including transferring property back to the estate, an inventory, restraint on asset disposition, appointment of an Estate Trustee During Litigation (ETDL), and extensive production of financial, medical, and testamentary records.

Ian brought a cross-motion to strike portions of Lara's supplementary affidavit.

The court addressed several agreed-upon matters and ruled on contested issues, partially granting production of counselling records, denying further general medical and financial records, and partially striking the applicant's affidavit by removing irrelevant and prejudicial allegations while retaining those relevant to the undue influence claim.

The appellants, Stewart Wilson and Elizabeth Wilson, appealed a motion judge's order dismissing two of their actions, one against Sara Fatahi-Ghandehari and another against Abrahams LLP.

The respondents sought dismissal of the appeal under Rule 2.1 of the Rules of Civil Procedure, arguing it was an abuse of process given the appellants' history of vexatious litigation and non-compliance with court orders.

The Court of Appeal found the appeal to be an abuse of process, reflecting frivolous or vexatious allegations and a continuation of issues previously struck by the court.

The appeal was dismissed with costs.

This decision addresses the determination of costs following an omnibus judgment in a protracted family and civil litigation spanning ten years.

The court fixed costs for three main issues: a dispute with a bailiff, claims between the Applicant and the Respondent/his mother, and an action against Abrahams LLP.

The court applied both Family Law Rules and Rules of Civil Procedure principles, emphasizing that successful parties are entitled to costs and that egregious or reprehensible conduct warrants full or substantial indemnity.

The Respondent and his mother were found to have engaged in abusive litigation conduct, leading to significant cost awards against them, while the Applicant was ordered to pay the bailiff's costs for an improper motion.

Following a trial in an estates matter where the applicants successfully established that a property was held in resulting trust for the deceased's estate, the applicants sought costs.

The court found no public policy considerations to deviate from the general civil litigation costs regime.

The respondents were ordered to pay the applicants' costs on a partial indemnity basis, fixed at $160,000 all-inclusive.

The Plaintiff sought costs at an interlocutory stage against the Defendant Thi Thu Lee (Le) following successful motions, including a Mareva injunction, reconveyance of properties, and payment of funds into court.

The Defendant argued costs should be deferred until the main issue of the Plaintiff's capacity was decided and that the amounts sought were excessive.

The court found the Plaintiff largely successful and entitled to costs on a partial indemnity basis, fixing them at $43,071.37.

However, the question of which defendant(s) should bear these costs was deferred for further submissions.

The applicants sought a declaration that a residential property transferred by their late mother/grandmother to three of her children was held in trust for the benefit of other family members.

The respondents claimed the transfer was a gift.

The court found that the applicants' claim for an oral inter vivos trust failed because it violated the writing requirements of the Statute of Frauds.

However, the court held that the respondents failed to rebut the presumption of resulting trust arising from the gratuitous transfer.

Consequently, the property was declared to be held in resulting trust for the deceased's estate.

Claims for partition and sale and for passing of accounts were dismissed.

The appellant brought a motion for leave to appeal an arbitration award.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the fixed amount of $3,300.

The applicant, a minority shareholder in a single-purpose real estate holding company, brought a third oppression application against the majority shareholders, seeking to force the sale of the company's property and its winding-up.

He alleged that the respondents oppressively withheld distributions and paid themselves unjustified salaries and special fees.

The respondents brought a cross-application to declare the applicant a vexatious litigant.

The court dismissed the oppression application, finding that the respondents' actions were justified and did not breach the applicant's reasonable expectations.

The court also dismissed the vexatious litigant cross-application but ordered that the applicant must seek leave before commencing any further proceedings against the company or its shareholders.

The plaintiffs, beneficiaries of their late mother's life insurance policy, brought a motion against the defendant trustee who had withheld the proceeds.

The defendant admitted to using the trust funds to purchase real estate in his own name under the mistaken belief he was a beneficiary.

The court ordered the defendant to immediately pay the remaining $389,559.39 to the plaintiffs, granted a certificate of pending litigation over properties purchased with the trust funds, and ordered the defendant to provide a full accounting within 60 days.

The appellant, Arthur Colucci, appealed a judgment declaring that he held a land use permit in trust for himself and the respondents (his brother and brother-in-law) as beneficial owners.

The core issue on appeal was whether the trial judge erred in finding an undocumented trust agreement existed, particularly regarding the certainty of intention, given the appellant's alternate explanation.

The Court of Appeal dismissed the appeal, affirming the trial judge's application of an objective standard to ascertain intention, considering all surrounding circumstances and the parties' conduct, and deferring to the trial judge's findings of fact and credibility.

The moving party brought motions for leave to appeal an order dated July 21, 2021.

The Divisional Court dismissed the motions for leave to appeal.

Costs of both motions were awarded to the responding parties in the fixed amount of $7,500 all inclusive.

The applicant sought to set aside an arbitration award of $625,551.19 in favour of the respondent partnership, arguing a denial of natural justice and procedural fairness.

The applicant claimed the arbitrator failed to apply common law principles requiring dissolution and an accounting before a partnership can sue a partner, and improperly denied documentary productions.

The Superior Court of Justice dismissed the motion, finding the arbitrator's decisions were reasonable, the applicant was estopped from changing his legal position late in the arbitration, and the production rulings were procedural matters within the arbitrator's jurisdiction.

The Executor sought full indemnity costs of $28,911.33 to be paid personally by the Objectors following a hearing with mixed results regarding the passing of accounts.

The Objectors sought full indemnity costs of $19,155.50.

The court found that the hearing had mixed results and neither party made an offer to settle.

Applying the modern approach to estate costs based on fairness and proportionality, the court ordered the Estate to pay fixed costs of $13,500 plus HST to both the Executor and the Objectors.

The applicants objected to the passing of accounts by the respondent estate trustee for both the pre-death and post-death periods.

The court passed the pre-death accounts but denied compensation to the trustee for that period, finding she acted merely as an agent and was already adequately compensated by the deceased.

For the post-death period, the court passed the accounts but reduced the trustee's compensation to 1.5% due to her role in generating hostility and litigation.

The court also ordered the estate to pay the trustee's legal fees of $80,479.97.

The applicant, a trustee and settlor of a family trust, sought to recover over $1 million from the trust for the 1993 transfer of a farm property, construction costs, and maintenance expenses.

The respondent beneficiaries opposed the claims and sought the removal of the trustees.

The Superior Court of Justice dismissed the applicant's financial claims, finding them to be either undocumented gifts or barred by the expired limitation periods.

The court ordered two beneficiaries to pay arrears for rent and utilities, and ordered one to vacate the property due to serious breaches of her tenancy agreement.

Finally, the court removed all three trustees for failing to properly administer the trust and protect the beneficiaries' interests, ordering their replacement by a professional third-party trustee.

The plaintiff, Voysus Connection Experts Inc., initiated an action alleging fraud and other breaches against former employees.

Voysus obtained an ex parte Mareva injunction against two defendants, Tayyab Shaikh and Anisha Shaikh, which was subsequently dismissed due to Voysus's failure of full and frank disclosure.

Voysus's motion to strike certain evidence from the defendants was also dismissed, though a confidentiality order was issued.

This endorsement addresses the costs of both motions.

The defendants sought substantial indemnity costs for the Mareva motion and costs for the motion to strike.

The court found that while Voysus's conduct warranted reproach, the defendants' conduct also unnecessarily increased costs.

The court awarded the defendants partial indemnity costs of $70,000.00 for the Mareva motion and ordered each party to bear their own costs for the motion to strike, concluding that the motion to strike was misconceived due to the defendants' actions.