Bradley Phillips

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 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 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.

The plaintiff employer brought a motion to continue an ex parte Mareva injunction against two former employees, alleging they engaged in fraudulent schemes involving payroll and expense accounts.

The plaintiff also moved to strike certain evidence produced by the defendants, including surreptitious recordings and confidential documents.

The court dismissed the motion to strike, noting that illegally obtained evidence may be admissible in civil proceedings, but ordered the defendants to maintain the confidentiality of the documents.

The court dismissed the motion to continue the Mareva injunction, finding that the plaintiff failed to make full and frank disclosure on the ex parte motion and failed to demonstrate a real risk of dissipation of assets.

The plaintiff brought a motion to continue an ex parte Mareva injunction against the defendants, alleging a fraudulent scheme where a former employee used the plaintiff's resources to manufacture parts for third parties and kept the profits.

The court found a strong prima facie case and a serious risk of asset dissipation against the employee's spouse, continuing the injunction against her, the employee, and their company.

However, the court found insufficient evidence of knowing participation or risk of dissipation against a third-party contractor, MTech, and dismissed the motion to continue the injunction against it.

The plaintiffs sued a father and son after the son breached an agreement of purchase and sale for a residential property.

The son forfeited his deposit, and the plaintiffs sought further damages from the father, alleging the son acted as his agent or that the father induced the breach.

The father moved for summary judgment to dismiss the action against him.

The court granted the motion, finding no evidence of an agency relationship or that the father intended to induce a breach of contract.

The court held that partial summary judgment was appropriate to remove the father from the action, leaving only the quantification of damages against the son.

The appellant, Solstice Two Limited, appealed a decision granting relief from forfeiture to the respondent, Valeria Scicluna, who had advanced $293,685 toward the purchase of a condominium but failed to close due to job loss.

The application judge awarded the recovered funds to the bankruptcy trustee rather than to Scicluna.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the relief from forfeiture as appropriate given the grossly disproportionate nature of the forfeiture and confirming that the funds properly vest in the bankruptcy trustee under the Bankruptcy and Insolvency Act.