Brian P. Pilley

The plaintiffs, Minoru and Sayoko Yamada, sought summary judgment to declare the forfeiture of deposits paid by the defendant, Janina Joseph-Walker, under an Agreement of Purchase and Sale (APS) for their property.

The defendant repeatedly failed to close the transaction and to pay an additional deposit required to reinstate the APS after its initial termination.

The court found no genuine issue for trial, concluding that the APS was terminated due to the defendant's breaches and was never reinstated.

The court also determined that the forfeiture of the $53,000 deposit was proportionate and not unconscionable, considering the defendant's prolonged delays and her registration of a Certificate of Pending Litigation against the property.

The appellant, a judgment creditor, appealed the dismissal of an application seeking a declaration of entitlement to the balance of matrimonial home sale proceeds, which were held in trust as security for the ex-husband's future child and spousal support obligations.

A writ of execution had been registered against the ex-husband's interest prior to the divorce order.

The Court of Appeal found that the application judge erred in interpreting the relevant jurisprudence and in failing to address the court's fundamental duty regarding child support.

The discovery of the writ of execution constituted a material change in circumstances.

The appeal was allowed in part, and the matter was remitted to the trial judge to consider whether a variation of the Divorce Judgment was appropriate in light of the material change.

The moving defendant, the Estate of Alex Bartholomey, brought motions to appoint a litigation administrator and to set aside a default judgment obtained by the plaintiff landlords for commercial lease arrears.

The court appointed the deceased's daughter as litigation administrator, making her jointly and severally liable for costs.

The court dismissed the motion to set aside the default judgment, validating the plaintiffs' order to continue nunc pro tunc and finding that the Estate failed to provide a plausible excuse for the default or an arguable defence on the merits regarding the deceased's liability under an indemnity agreement.

Following the dismissal of the application, the successful respondent sought partial indemnity costs of $15,084.47.

The applicant argued the amount should be between $4,152.75 and $5,339.25.

Applying the factors in Rule 57.01(1) and the principle of proportionality, the court fixed costs at $12,000 inclusive of disbursements and HST, noting the importance of the case to the respondent and the legal issues involved.

The applicant, a judgment creditor of the respondent's ex-husband, sought a declaration of entitlement to the ex-husband's share of the proceeds from the sale of a matrimonial home.

The proceeds had been ordered held in trust by a judge in the divorce proceedings to secure future child and spousal support obligations.

The applicant argued that his writ of seizure and sale had priority under the Creditors' Relief Act.

The court dismissed the application, holding that the trust was validly created under the court's equitable jurisdiction and the Divorce Act, and that any attempt to vary the order must be brought within the matrimonial proceedings rather than as a collateral attack.

The plaintiffs, a hair salon tenant and its principals, brought a motion for injunctive relief and access to commercial leased premises after the landlord locked them out due to alleged rent arrears and property damage concerns during the COVID-19 pandemic.

The landlord had purported to exercise a right of distress for an inflated amount including by-law infraction costs.

The court found the landlord's actions constituted a forfeiture of the lease and an illegal distraint.

The court granted the plaintiffs' requested access to retrieve chattels and ordered the landlord to pay substantial indemnity costs due to its "reprehensible, scandalous or outrageous conduct" in holding the chattels hostage during a vulnerable time.

The appellant lender sought to recover $100,000 advanced to the respondent company on the security of a promissory note guaranteed by the respondent individual.

The motion judge dismissed the appellant's motion for summary judgment and granted summary judgment in favour of the respondents.

The Court of Appeal found that the motion judge failed to properly address a clear conflict in the evidence regarding whether the respondent individual controlled the company and whether the promissory notes were signed with authorization.

The court held that the motion judge improperly preferred one affidavit over another without providing explanatory reasons and without considering whether credibility issues could be resolved without viva voce evidence.

The judgment was set aside and the matter was remitted for proper adjudication.

The plaintiffs sought directions after the defendant paid an outstanding costs order but failed to comply with the remaining terms of a previous order requiring him to produce financial documents and attend for cross-examination regarding his claim of impecuniosity.

The defendant argued that paying the costs relieved him of the other obligations.

The court held that the defendant could not selectively comply with the order to avoid cross-examination, as his financial status was relevant to the broader proceeding.

The court ordered the defendant to produce the documents and attend for cross-examination, failing which the plaintiffs could return their motion to strike his Statement of Defence.

The plaintiffs moved to strike the defendant’s statement of defence under Rule 57.03(2) of the Rules of Civil Procedure for failure to pay previously ordered motion costs.

The responding party argued he was impecunious and unable to satisfy the costs award.

The court held that striking a defence is an extreme remedy and generally a last resort, particularly where a party has not yet been given a final opportunity to comply.

The court ordered extensive financial disclosure to test the claim of impecuniosity and granted the defendant a final 90‑day opportunity to pay outstanding costs.

The defence would be struck if the ordered costs were not paid by the specified deadline.

The appellant appealed a trial judgment upholding the validity of his deceased brother's will, which left the estate to the respondent, the testator's common law partner.

The appellant challenged the due execution of the will, the admissibility of hearsay evidence from a police officer regarding the testator's statements, an award of $10,000 in damages for trespass and conversion, and the denial of his costs out of the estate.

The Court of Appeal dismissed the appeal, finding ample evidence of proper execution, that the hearsay evidence met the necessity criterion, and no basis to interfere with the damages or costs awards.

The appellants appealed a trial judgment finding them liable for breach of contract.

The Court of Appeal dismissed the appeal, holding that the trial judge properly relied on business records admitted without objection to find a contract, breach, and damages.

The Court also upheld the judgment against both corporate defendants, noting their pleadings made no distinction between them, and found no error in the trial judge's refusal to grant an adjournment.

The appellant appealed a trial judge's decision finding that a will was not the product of undue influence.

The Court of Appeal dismissed the appeal, holding that the trial judge made no palpable and overriding error.

The court noted that the solicitor's evidence supported the trial judge's finding, there was no evidence of infirmity, and ten years had elapsed since the will was made.

The appellants appealed a trial judge's decision regarding the administration of an estate and the associated costs order.

The Court of Appeal dismissed the appeal on the merits, finding no basis to interfere with the trial judge's assessment of credibility and expert evidence.

However, the Court granted leave to appeal the costs order and set it aside.

The Court held that beneficiaries are entitled to an accounting of an estate's assets, and because the estate had not been fully administered, the costs of the trial of an issue should be borne by the estate on a solicitor-and-client basis.

Success being divided, no costs were awarded for the appeal.

The appellant, representing the estate of Florence McLaughlin, appealed a trial decision dismissing a claim for approximately $167,878 against the estate of Ernest McLaughlin.

Ernest had been the trustee of Florence's estate and commingled its funds with his own.

Before Ernest's death, his brother Bruce, acting as successor trustee, facilitated a new will for Ernest that established a $50,000 trust for their siblings in satisfaction of the estate's obligations.

The Court of Appeal upheld the trial judge's finding that Bruce had acquiesced to this arrangement in his capacity as trustee, thereby settling the claim and binding the beneficiaries.