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The Court of Appeal upheld the rectification of a will to ensure property proceeds passed to the testator's brother rather than the residuary estate.
The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).
The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.
Costs were awarded against the appellant.
The court ordered the unsuccessful party in an estate dispute to pay costs, departing from the traditional rule of estate-funded litigation.
This costs endorsement followed two applications concerning the interpretation and rectification of a will.
The court had previously dismissed the interpretation application brought by Bishop Moussa and granted the rectification application brought by Sarwat Mansour, supported by Samia Messieh.
The court applied the modern approach to costs in estate litigation, scrutinizing the conduct of the parties.
While acknowledging the initial drafting error in the will necessitated legal advice, the court found Bishop Moussa's continued pursuit of an "absurd" interpretation led to unnecessary litigation.
Consequently, Bishop Moussa was ordered to pay a significant portion of the costs incurred by Ms. Messieh and Mr. Mansour, with some allowances from the estate for initial advice related to the drafting error.
The Court of Appeal upheld a five-year, 15-kilometer non-competition covenant arising from the sale of a dentistry practice.
This appeal concerned the enforceability of a restrictive covenant in the context of a dentistry practice sale.
The appellants, Dr. Cooke, 6326471 Canada Inc., and Dr. B. Zaricniak Dentistry Professional Corporation, challenged a five-year, 15 km non-competition covenant after Dr. Cooke terminated his association and began working at a nearby practice.
They argued the trial judge erred in applying the burden of proof and in finding the covenant's duration and geographic scope reasonable.
The Court of Appeal dismissed the appeal, affirming that restrictive covenants in commercial contexts are presumed valid and attract less scrutiny than in employment, and upheld the trial judge's assessment of the covenant's reasonableness.
Contract Motion allowed
The defendants brought a motion to set aside a noting in default and default judgment obtained by the plaintiff in a dispute concerning guardian contracts for dogs.
The plaintiff, a dog breeder, had obtained default judgment for breach of contract and return of dogs/puppies.
The court granted the defendants' motion, finding they moved promptly, had a plausible explanation for the default (misunderstanding regarding notice from plaintiff's counsel), and presented an arguable defence on the merits.
The court emphasized the preference for resolving disputes on their merits and the importance of professional courtesy among counsel, particularly regarding default proceedings.
