Brian Alexander Banfield

Following a four-week trial regarding the passing of estate accounts, both the estate trustee and the objecting beneficiary sought costs.

The court found that both parties had mixed success and neither was entitled to costs personally from the other.

The court also declined to order full reimbursement of the trustee's $187,597.09 legal costs out of the estate, as doing so would unfairly burden the objecting beneficiary's 50% share of the estate.

The trustee was awarded $10,000 out of the estate for routine administration costs, with the remainder to be borne personally.

This case involved a trial of issues arising from an application by Jack Sentineal, as estate trustee for his father Frederick Clement Sentineal, to pass his accounts.

The defendant, Jeffrey Sentineal, opposed the accounts, alleging breaches of fiduciary duty, misappropriation of assets, and unreasonable delay by the trustee.

The court addressed disputes over estate assets, including real estate and chattels, and the financial dealings of a family business (Queen’s Royal Tours Inc.).

The court found that Jeffrey had converted certain estate chattels and contributed significantly to the delay in estate administration.

Jack was found responsible for a late tax filing but otherwise discharged his duties reasonably.

The court approved the estate accounts with adjustments, awarded Jack executor's compensation, and referred legal fees for assessment.

Following a jury trial arising from a motor vehicle accident, the court determined costs consequences after the plaintiff obtained a judgment significantly lower than the defendant’s Rule 49 offer to settle.

The jury awarded $100,000 in damages but the net payable amount after statutory deductions and contributory negligence was $49,000.

The court held that the defendant’s offer was substantially more favourable than the judgment and applied Rule 49.10 of the Rules of Civil Procedure.

The plaintiff was awarded partial indemnity costs up to the date of the defendant’s offer, while the defendant received partial indemnity costs thereafter.

The court fixed the plaintiff’s costs to the date of the offer at $65,000 and the defendant’s costs after the offer at $95,000, with an additional $7,000 to the plaintiff for post‑trial motions.

Following a jury verdict in a motor vehicle personal injury action, the defendant brought a motion to settle the judgment and determine whether statutory accident benefits previously received by the plaintiff should be deducted from future damages awarded by the jury.

The plaintiff had settled accident benefits claims with the insurer through a lump‑sum settlement covering income replacement, medical, rehabilitation, and attendant care benefits.

The court held that deductions under s. 267.8 of the Insurance Act require alignment between the benefit received and the head of damages awarded (“apples to apples”).

Because the settlement amounts did not specify what portion related to future benefits and the jury award did not allocate future care costs among categories, the court found it impossible to determine proper deductions.

No deductions were applied to the jury’s awards for future income loss or future care.

The defendant brought a motion under s. 267.5(5) of the Insurance Act to dismiss the plaintiff’s motor vehicle accident claim on the basis that the injuries did not meet the statutory threshold of a permanent serious impairment of an important bodily function.

The court considered extensive medical evidence regarding chronic pain, depression, and functional limitations following a clavicle fracture requiring surgical fixation.

The court accepted that the plaintiff’s chronic pain and associated symptoms were genuine and had significantly impaired his ability to work and participate in normal life activities for eight years following the accident.

Applying the threshold analysis under the Insurance Act and the approach articulated in Meyer v. Bright, the court found the impairment permanent, serious, and affecting an important bodily function.

The defendant’s threshold motion was therefore dismissed.

The appellant appealed a Superior Court decision regarding the administration of an estate, and the respondent cross-appealed seeking the removal of the estate trustee.

The Court of Appeal varied the judgment to provide that all remaining funds be held back until the final passing of accounts, but otherwise dismissed the appeal.

The cross-appeal was dismissed as it was impractical to insert a new estate trustee on the eve of the passing of accounts.

Liberty Mutual appealed an arbitration order requiring it to pay a loss of earning capacity benefit based on a pre-accident earning capacity of $31,000 and a residual earning capacity of zero.

The Director's Delegate upheld the finding of zero residual earning capacity, noting it was supported by evidence that the claimant could not work reliably or consistently.

However, the Delegate allowed the appeal regarding pre-accident earning capacity, finding the Arbitrator erred in law by failing to consider the credibility of the claimant's undocumented assertion that she was about to open a third gas station.

The issue of pre-accident earning capacity was remitted to the Arbitrator.

The applicant was injured in a motor vehicle accident and sought a loss of earning capacity benefit (LECB) from the insurer.

The parties disputed the applicant's residual earning capacity (REC) and pre-accident earning capacity (PEC).

The arbitrator found that the applicant suffered from severe migraines and cognitive deficits, rendering her unable to sustain competitive employment, resulting in a REC of $0.

The arbitrator determined her PEC to be $31,000 based on her best 52 weeks of reported income plus expected income from a new business location.

The insurer was ordered to pay the LECB based on these figures, indexed for inflation.

Additionally, the arbitrator awarded a $500 special award against the insurer for unreasonably relying on an outdated and inaccurate assessment to make a low LECB offer.

The appellants appealed an order dismissing their action on summary judgment on the basis of issue estoppel arising from a committee decision made in the course of a costs disposition.

The court held that the committee's finding that the proceedings were not unwarranted did not answer the central question whether the investigation and proceedings were undertaken in bad faith.

Because the first requirement of issue estoppel was not met, the summary judgment order could not stand.

The matter was remitted to the motions judge to determine whether there was otherwise a genuine issue for trial, and leave to admit fresh evidence was refused.

The applicant was injured in a motor vehicle accident and received income replacement benefits (IRBs) for over 104 weeks before the insurer terminated them.

The arbitrator found that the insurer failed to comply with its statutory duty to provide a loss of earning capacity (LEC) offer at the 104-week mark, and ordered the insurer to continue paying IRBs until it complied.

The arbitrator also found the applicant suffered a substantial inability to perform the essential tasks of her employment as a gas station cashier due to accident-related headaches and neck pain.

The applicant was awarded costs for massage therapy and a medi water pillow, but claims for a convertible vehicle, boat canvas top, chiropractic care, and a hard bite plate were dismissed.

A special award of $15,000 was granted against the insurer for unreasonably withholding IRBs.