Cory A. Gilmore

The applicants, estate trustees, sought directions regarding the distribution of a lapsed charitable gift in the will of Anna Salnikova.

The deceased had bequeathed 20% of her estate's residue to a charity that no longer exists.

The applicants proposed distributing this portion pro-rata among the other 19 named charities, effectively treating it as an intestacy.

The Public Guardian and Trustee (PGT) argued for the application of the cy-pres doctrine, directing the gift to a charity with similar charitable objects.

The court found that the will demonstrated a general charitable intent, particularly given that 95% of the estate was gifted to charities and the specific importance of the lapsed gift's purpose (orphans in South America).

Consequently, the court applied the cy-pres doctrine, rejecting the applicants' intestacy argument and ordering the PGT to identify suitable nominee charities.

The applicant sought repayment from her brother, the respondent and de facto Estate Trustee, for funds he allegedly misappropriated from their mother's estate while acting as her Power of Attorney.

The respondent claimed the funds were gifts and compensation for his caregiving services.

The court found the respondent failed to provide corroborating evidence of any gifts or compensation agreement, thereby failing to rebut the presumption of resulting trust.

The court held the respondent breached his fiduciary duties and ordered him to repay the misappropriated funds directly to the applicant.

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 applicant, common-law partner of the deceased, moved for summary judgment to set aside the deceased's 2017 Will and validate a 1991 Will, alleging the 2017 Will was signed under suspicious circumstances due to the deceased's severe dementia.

The respondent, the deceased's son, sought to propound the 2017 Will.

The court found overwhelming evidence of the deceased's incapacity at the time of execution, despite no finding of undue influence, and granted the applicant's motion, setting aside the 2017 Will and associated Powers of Attorney.

The plaintiff challenged the 2016 will of his deceased sister, which left her entire estate to her stepson (the defendant) and transferred her home into joint tenancy with him.

The plaintiff argued the deceased lacked testamentary capacity due to cognitive decline and delusions, and was unduly influenced by the defendant.

The defendant counterclaimed for the return of $247,322.95 that the deceased had transferred to the plaintiff and another sibling in 2014, alleging it was taken without her knowledge.

The court dismissed both the claim and the counterclaim.

The court found the deceased had the requisite capacity to execute the 2016 will and property transfer, relying on the assessments of her treating physician and a geriatric specialist.

The court also found no evidence of undue influence.

The counterclaim was dismissed as the court found it unnecessary to determine the exact reasons for the 2014 transfer, concluding it did not need to be undone.

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 applicants, executors of an estate, sought a declaration on whether paying a Dubai judgment against the deceased's former law firm would violate Canadian law.

The judgment creditor was associated with entities that had historically raised funds for the Islamic Revolutionary Guard Corps (IRGC), a listed terrorist entity.

The respondents, former law partners of the deceased, argued that the payment would not benefit a terrorist group and relied on expert evidence regarding anti-money laundering laws in Dubai and the BVI.

The court found that any payment towards the Dubai judgment would be contrary to section 83.03(b) of the Criminal Code, as there was a risk the funds could indirectly benefit a terrorist group.

The applicant trustee sought directions to wind up a trust held for a beneficiary residing in Florida, pay the proceeds to a Florida guardian, and receive compensation and costs.

The beneficiary's mother challenged the court's jurisdiction, the validity of the trust, and the trustee's claims for compensation and costs.

The court found it had jurisdiction, upheld the validity of the trust, dispensed with a formal passing of accounts, and ordered the trust wound up with proceeds paid to a Florida guardian.

The trustee was awarded compensation and substantial indemnity costs payable from the trust.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicant mining company sought a final order approving a Plan of Arrangement under the Canada Business Corporations Act to sever ties with the Kyrgyz Republic following the state's seizure of its flagship mine.

Two unsecured judgment creditors of the Republic objected, seeking to enforce their arbitral awards against the Republic's shares in the applicant or garnish payments under the Arrangement.

The court approved the Arrangement, finding it met the statutory requirements, had a valid business purpose, and was fair and reasonable.

The court held the creditors lacked standing to oppose the Arrangement and that garnishment was inappropriate as it would result in double jeopardy.

The Ontario Securities Commission applied to continue Freeze Directions over five trading accounts owned by the respondent, which allegedly contained proceeds of insider trading based on material non-public information.

The respondent opposed the continuation, arguing a lack of admissible evidence.

The court applied the low evidentiary threshold from Future Solar and found sufficient evidence to meet the three-part test, continuing the Freeze Directions until October 31, 2022, or the conclusion of proceedings.

The applicant brought a motion for a declaration that his mother was incapable of managing property and personal care, and to validate 2015 Powers of Attorney while invalidating 2017 revocations and 2019 Powers of Attorney.

The respondent sister opposed, arguing the mother lacked capacity in 2015 and was unduly influenced by the applicant.

Relying on a court-ordered capacity assessment by a neurologist, the court found the mother had capacity in 2015 but lacked capacity by 2017.

The court dismissed the respondent's allegations of undue influence, validated the 2015 Powers of Attorney, and declared the 2017 revocations and 2019 Powers of Attorney void ab initio.

The defendant in a reinsurance dispute brought a motion to amend its Statement of Defence to particularize policy exclusions it relied upon to dispute the quantum of a business interruption claim.

The plaintiff opposed, arguing the amendments amounted to the withdrawal of an admission under Rule 51.05 of the Rules of Civil Procedure and would cause prejudice.

The court granted the motion, finding that the defendant had always disputed quantum, the amendments merely clarified how quantum should be calculated, and no deliberate concession had been made that would trigger Rule 51.05.

The applicant brought a motion seeking an order for his 99-year-old mother to undergo a capacity assessment pursuant to s. 105 of the Courts of Justice Act, and for the continuation of the Estate Trustee During Litigation (ETDL).

The applicant raised concerns about his mother's capacity to act as estate trustee following her examination out of court, where she provided non-responsive answers and demonstrated a lack of understanding of the estate's multi-million dollar debts.

The court found that the mother's capacity was in issue and ordered the assessment, balancing her privacy rights against the need to protect the vulnerable estate.

The court also granted a mandatory injunction to continue the ETDL's mandate to maintain the status quo pending the capacity assessment and the main application.

The estate trustees moved to stay an Ontario dependant support application brought by the deceased's common law spouse, arguing Ontario lacked jurisdiction or, alternatively, that Monaco was the more convenient forum.

The court held Ontario had jurisdiction simpliciter because of connecting factors including an Ontario-resident estate trustee, an Ontario bank account, and the will's choice of Ontario law.

Applying the forum non conveniens analysis, however, the court found Monaco was clearly the more appropriate forum given the location of the estate assets, witnesses, documents, estate administration, and the relationship giving rise to dependency.

The Ontario application was stayed, with leave to seek to lift the stay if the Monaco court refuses to acknowledge or apply the Succession Law Reform Act.

Costs of $30,000 were awarded to the moving parties.

Following a lengthy trial regarding the ownership of a family business, the successful plaintiff sought costs of approximately $1.57 million.

The plaintiff had served an offer to settle seven days before trial, which the defendant rejected.

The court exercised its discretion under Rule 57.01 to award substantial indemnity costs from the date of the offer, finding the offer was reasonable and the defendant's conduct unnecessarily increased costs.

After deducting amounts related to separate actions, the court fixed costs payable to the plaintiff at $1,306,757.90.

The respondent Estate Trustee brought a motion to clarify a prior Preservation Order to permit her to withdraw Estate funds to pay her legal and accounting fees incurred in defending an application to remove her as Estate Trustee.

The court dismissed the motion, finding that the Preservation Order explicitly restricted payments to legitimate taxes and liabilities, which did not include the trustee's personal legal fees in a dispute over her removal.

The court also extended the timeline for the passing of accounts.

The plaintiffs challenged the validity of a share transfer agreement entered into between two of the defendants, which resulted in one defendant becoming the majority shareholder of the corporation.

The court applied an objective test to determine the parties' intention to contract and found that the agreement contained all necessary elements of a contract.

The court rejected arguments that the agreement was merely an agreement to agree or that it was invalid due to technical deficiencies under the Business Corporations Act.

The share transfer agreement was declared valid and binding.

The plaintiff and defendant, siblings, disputed the ownership of three real estate holding corporations left to them by their father.

The plaintiff claimed they reached an agreement in 2014 to divide ownership, with the plaintiff taking one corporation and the defendant taking the other two, and that she signed a renunciation of her interest in a family trust based on this agreement.

The defendant argued the agreement was only for a temporary division of management.

The court found that the parties were in a fiduciary relationship, intended to divide ownership, and conducted themselves as sole owners for seven years.

The court granted a declaration that the plaintiff is the beneficial owner of the defendant's shares in the chosen corporation based on contract and proprietary estoppel.