Christopher M. B. Graham

The court granted summary judgment in favour of Bennington Financial Corp. against 2724112 Ontario Inc. and Christopher Graham for amounts owing under a commercial equipment lease.

The court found that the defendants' defences were fully answered by the plaintiff's evidence, including admissions of payment and execution of the lease, and that there was no genuine issue requiring a trial.

The court reserved on interest and costs, inviting written submissions.

The applicant sought an interim injunction to preserve the respondent mother's assets pending a guardianship application, alleging the mother lacked capacity and was subject to undue influence by a new, much younger husband.

The court dismissed the motion, finding no medical evidence to support the claim of incapacity and that the issue of undue influence was premature as the mother was alive and deemed capable.

The court emphasized that a competent person has the right to make decisions deemed foolish by others.

The applicant, Jennifer Lynn James, brought a motion seeking to add Gideon Amofa as a respondent, validate service on him, and enforce a Florida temporary injunction.

The Florida injunction prohibited Gideon Amofa from contacting Carol Fern James, coming near her home or car, and froze assets held at TD Wealth in Toronto, even if jointly titled.

The court dismissed all three requests.

It found that service on Gideon Amofa was not properly effected under the Hague Service Convention, that Gideon was not a necessary party to the existing guardianship application concerning Carol's capacity, and that the Florida temporary injunction was not final or sufficiently clear for enforcement in Ontario.

The court also raised public policy concerns regarding the enforcement of an order that restricts a presumed capable person's contact with her husband and freezes her assets, especially when the relief granted exceeds what is available under Ontario law without a finding of incapacity.

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

This endorsement concerns a costs award following a successful partial summary judgment motion brought by Deborah Scott.

The Plaintiff had made serious, unfounded allegations of criminality, immorality, deceit, theft, fraud, and elder abuse against Ms. Scott, which the court found to be without foundation.

Ms. Scott sought full indemnity costs, while the Plaintiff argued for partial indemnity costs only.

The court determined that Ms. Scott should never have been a party to the litigation and that the Plaintiff's motivation was misplaced.

Citing precedent, the court awarded Ms. Scott full indemnity costs of $282,000, inclusive of HST and disbursements, to be paid from the settlement funds.

The Court of Appeal for Ontario heard a motion for a stay of a lower court order pending appeal.

The lower court had appointed a litigation guardian and guardian of property for an incapable 100-year-old individual, removed her counsel, and ordered costs.

The moving parties (the incapable individual and her son) sought to stay this order.

The court applied the three-part test for a stay, finding no serious issue to be tried regarding the incapacity finding or the guardian's appointment, especially given prior findings of unconscionable procurement of assets by the son.

The court also found no irreparable harm would be suffered by denying the stay, as the appointed guardian is accountable to the court.

The balance of convenience favored allowing the lower court's order to take effect.

Consequently, the motion for a stay was dismissed.

The defendant, a long-time assistant to the deceased, brought a motion for partial summary judgment to dismiss all claims against her in a complex estate and conspiracy action.

The plaintiff alleged the defendant was part of a conspiracy to strip the deceased's estate of assets to defeat a dependant's support claim.

The court found that partial summary judgment was appropriate and that there was no evidence the defendant participated in any conspiracy, acted as a fiduciary, or committed any of the alleged torts.

The motion was granted, and all claims and cross-claims against the moving party were dismissed.

The applicant brought a motion seeking declarations that his 99-year-old mother was incapable of managing property and instructing counsel, and seeking the appointment of a litigation guardian and guardian of property.

The court reviewed competing capacity assessments and preferred the assessment finding incapacity, noting the mother's confusion and inability to understand the litigation.

The court appointed a neutral third-party lawyer as litigation guardian and guardian of property, passing over the mother's other son due to extreme family conflict and a prior finding of unconscionable procurement.

The court also ordered the mother's counsel to pay $3,500 in costs personally for taking unreasonable positions and failing to address his client's lack of capacity.

The plaintiff commenced an action against her husband's children and the lawyers who acted for him in prior divorce proceedings, alleging conspiracy, abuse of process, and other torts.

The defendants moved to strike or dismiss the claims under Rule 21.

The court dismissed the claims against the adverse lawyers, finding no duty of care was owed to the plaintiff.

The court also dismissed the tort claims for abuse of process, conspiracy, and intentional interference with economic relations as an abuse of process by relitigation, as they sought to undermine the final settlement reached in the divorce proceedings.

The defamation and intentional infliction of mental suffering claims were struck with leave to amend.

Multiple appeals arose from a complex family estate dispute following the death of a spouse whose estate passed to the surviving spouse under mirror wills.

Two sons alleged that a handwritten document and surrounding circumstances created both a mutual wills agreement and a secret trust requiring equal distribution of the estate among the three sons after the surviving spouse’s death.

The Court of Appeal held that the evidence did not establish a binding mutual wills agreement or the elements of a secret trust, emphasizing the absence of a transfer of property and clear contractual intent.

The court also upheld the trial judge’s treatment of certain inter vivos transfers and confirmed that a joint tenancy in a condominium had been severed through the parties’ course of dealings.

All appeals were dismissed.

Following a 14-day trial on an application to pass accounts where the applicant trustees were ordered to repay $150,531.14 to the trust, the respondent sought $567,157.64 in substantial indemnity costs.

The court found the respondent was the successful party and entitled to costs.

However, the court declined to award enhanced costs, finding that while the applicants failed to keep proper records and created documents to reconstruct the accounts, their conduct was not reprehensible or scandalous.

The court also found the respondent's costs claim was disproportionate and unreasonable due to over-lawyering and unreasonable litigation conduct.

The court awarded the respondent $90,000 in costs inclusive of disbursements and taxes.

The appellants appealed two orders made by a case management judge authorizing the sale of an estate property and setting the terms of the sale.

The respondent Estate Trustee During Litigation brought a motion to quash the appeal on the basis that the orders were interlocutory and leave to appeal had not been obtained.

The Divisional Court held that the orders were interlocutory because they did not finally determine the substantive rights of the parties to the net proceeds of the sale.

The court further held that leave to appeal is required for interlocutory orders under s. 10(1) of the Estates Act.

As the appellants did not seek leave, the appeal was quashed.

The court also noted that the appeal would have been dismissed on the merits in any event.

The moving party sought to quash an appeal by the responding party, Henia Gefen, on the grounds that it was out of time.

The Court of Appeal dismissed the motion, finding that the appeal was not out of time because the time for appeal began to run from the date the judgment was finally settled and issued (October 16, 2020), rather than the date reasons were released (October 17, 2019).

This exception applied because the judgment was uncertain on a substantive point (paragraph 5, identifying deceased's assets) which was not part of the initial summary of disposition.

The court also noted that an extension of time would have been granted in the interests of justice due to factual connection between appeals and no prejudice to the moving party.

The applicants, parents and trustees of a trust established for their son following a serious brain injury, applied to pass their accounts.

The trust received $418,675.25 over 17 years, but the trustees administered it entirely in cash and lacked receipts for most disbursements.

The court found that the trustees failed to keep proper records and included fictitious loans and unpaid services in the accounts.

While some expenses were allowed, the trustees failed to account for $165,531.14.

After deducting $15,000 for trustee compensation, the court ordered the trustees to repay $150,531.14 to the trust.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

The applicant sought full indemnity costs of $244,556.99 for an application regarding ownership interests in a property, citing the respondent's litigation tactics and delayed production of documents.

The respondent argued for no costs due to divided success, as the applicant did not succeed in claiming a 100% interest or an order for sale.

The court awarded the applicant substantial indemnity costs, reduced by 50% to reflect partial success, fixing the costs at $110,050.65.

Following a complex estates trial involving claims and counterclaims among family members, the court determined the costs of the proceedings.

Finding no clear winner or loser, the court applied the modern approach to estates costs and ordered that the partial indemnity costs of the respondent sons and the estate of a deceased son be paid out of the father's estate, due to the public policy considerations engaged by the father's pre-death actions.

The court also ordered the estate to pay the reasonable preparation and attendance costs of non-party professional witnesses.

The applicant's estate sought costs for a successful dependent's support motion.

The court awarded substantial indemnity costs of $84,456.11 against the respondent estate trustee and the estate jointly and severally, citing the respondent's vituperative opposition and the applicant's unaccepted offer to settle.

A supporting respondent's request for costs was dismissed as there was no lis between him and the opposing respondent.

The applicant estate trustee sought a declaration of the deceased's 50% interest in a condominium property.

The property was originally held in joint tenancy by the deceased and his mother.

The court found that the joint tenancy was severed prior to the deceased's death through the mother's unilateral instructions to her lawyer to sever the tenancy and the deceased's use of his interest as security for a support order.

The court declared the mother's subsequent survivorship application void and ordered the title rectified to reflect a tenancy in common, but declined to order partition and sale while the mother still resided in the property.