Caitlin Elizabeth Murray

The applicants, representative plaintiffs in an uncertified class proceeding against the Crown arising from a blockade in Caledonia, brought an application for a declaration that s. 17 of the Crown Liability and Proceedings Act, 2019 (CLPA) is unconstitutional.

Section 17 imposes an automatic stay on claims against the Crown for misfeasance in public office or bad faith, requiring plaintiffs to obtain leave by showing a reasonable possibility of success, while exempting the Crown from documentary or oral discovery.

The Superior Court found that s. 17 violates s. 96 of the Constitution Act, 1867 by denying plaintiffs meaningful access to the courts, as it prevents them from obtaining the evidence necessary to meet the leave test.

The court declared s. 17 of the CLPA to be of no force or effect and lifted the stay on the applicants' proceeding.

This costs endorsement followed a contested passing of accounts where the estate trustees, Helen Jones and William Warbick, were found to have breached their fiduciary duties and mismanaged the estate of Pearl Warbick.

The Represented Objectors (Ann Warbick, Michael Warbick, and Pearl Moir) and John Warbick (self-represented) were successful in the underlying litigation.

The court ordered Helen and William to pay the Represented Objectors' costs on a substantial indemnity basis, fixed at $40,744.28, and to reimburse the Estate for a significant portion of the forensic accounting and tax preparation fees incurred due to their poor record-keeping and failure to file tax returns.

The court declined full indemnity costs but found substantial indemnity appropriate given the trustees' conduct.

In a contested passing of accounts arising from protracted intra-family estate litigation, the court accepted a court-appointed forensic accountant’s reconstructed estate accounts where the original estate trustees had failed to maintain adequate records.

The court found the estate trustees had mismanaged estate assets, engaged in self-dealing, failed to comply with the will’s direction concerning farm expenses and sale, and fell well below the standard of care of a person of ordinary prudence.

No reserve was permitted for alleged contingent legal fee liabilities because the evidentiary foundation was lacking.

The trustees were held jointly and severally liable for losses reflected in the beneficiary equity accounts, with repayment to be effected from their distributive shares before any distribution to them.

This endorsement addresses the issue of costs following a trial where parties were unable to settle.

The respondent sought costs, arguing success on an access issue and the applicant's unreasonable conduct regarding disclosure of section 7 expenses.

The applicant claimed overall success and sought partial indemnity costs.

The court found the respondent was successful on one issue and the applicant acted unreasonably by failing to comply with a disclosure order, ignoring requests, and presenting disorganized material, which prevented a meaningful settlement offer and prolonged the trial.

Consequently, the respondent was awarded costs.

The parties, married in 2008 and separated in 2010, resolved custody, access, property equalization, and divorce through partial minutes of settlement.

The trial addressed outstanding issues of child support arrears, ongoing child support, contribution to section 7 extraordinary expenses, and the respondent's obligation to transport children to extracurricular activities during his Sunday access.

The court determined child support obligations based on the respondent's income, apportioned section 7 expenses, and granted the respondent discretion over Sunday activities during his access, emphasizing the importance of quality time with the children and paternal grandparents.