David Lawrence Noseworthy

An elderly co-owner of a multi-unit residential property sought an order for partition and sale under the Partition Act, along with the potential appointment of a receiver/manager pending sale.

The court held that a tenant-in-common has a prima facie right to seek partition or sale unless the opposing party proves oppression, malice, or vexatious intent.

The respondents failed to demonstrate such circumstances, and evidence showed a lack of transparency and accounting in the property's management.

The court ordered that the property be valued and listed for sale, with the respondents given a short opportunity to purchase the applicant’s interest at fair market value.

If no acceptable offer is made, a receiver/manager will be appointed to manage and sell the property.

Following prior reasons concerning the validity of a transfer of property and the appointment of guardians of property under the Substitute Decisions Act, the applicants sought directions to determine the market rent payable by a respondent who continued to occupy a residential property owned by an incapable person.

The court assessed competing valuation evidence and determined the fair rental value while granting a modest credit for minor property management services performed by the occupant.

The court also addressed ancillary orders required to implement its earlier judgment, including restoring title to the incapable person, directing the return of funds held in trust to the appointed guardians, removing a charge registered on title for legal fees, clarifying authority over insurance matters, and permitting section 3 counsel to withdraw.

The decision illustrates the court’s authority under Rule 59.06(2) of the Rules of Civil Procedure to give further directions necessary to carry an order into operation.

Co-owners of a residential apartment complex brought a motion to stay a partition and sale application or, alternatively, to have it heard together with or consolidated with an earlier civil action involving related family disputes over the property and alleged financial dealings.

The court considered Rule 6.01(1) of the Rules of Civil Procedure governing consolidation of proceedings and the balance of convenience factors articulated in prior case law.

The court held that the two proceedings involved different legal issues and procedural postures, with the application proceeding on affidavit evidence and the action involving historical contractual and estate-related claims.

The court also found the motion was brought late and appeared designed to delay adjudication of the partition application.

The motion to stay, consolidate, or hear the matters together was dismissed.

Adult children challenged their mother’s 2005 will, powers of attorney, and subsequent transfers of property to another sibling, alleging incapacity, undue influence, and misuse of assets.

The court held that the mother had testamentary capacity in 2005 and validly executed the will and powers of attorney.

However, by 2008 she lacked capacity to transfer her home to the respondent son, and that transfer was declared void due to incapacity and undue influence.

The court found she presently lacked capacity to manage property, personal care, grant powers of attorney, or make a will.

Although the 2005 powers of attorney were valid, the court removed the attorney due to misconduct and appointed two other sons as guardians of her person and property.

The representative plaintiff brought a motion seeking approval of a class action settlement and class counsel fees under s. 29 of the Class Proceedings Act, 1992.

The underlying action alleged that a credit card issuer charged cash advance fees and interest that could produce an effective annual interest rate exceeding the criminal interest threshold under s. 347 of the Criminal Code.

After nearly nine years of litigation and mediation, the parties agreed to an $8 million settlement fund, including cy près distribution to the Law Foundation’s Access to Justice Fund and account credits for qualifying cardholders with open accounts.

The court found the settlement fair, reasonable, and in the best interests of the class, approving the settlement and class counsel fees but declining to award an honorarium to the representative plaintiff.