David M. Lobl

An estate trustee brought an application for court opinion, advice, and direction regarding the sale of estate real property subject to successive purchase options in a testator's will.

The respondent had purported to exercise his first right of purchase by email within 30 days of receiving notice, without submitting a formal offer or proof of financing.

The court held that the respondent validly exercised his option through informal notice, as the will imposed no formal requirements.

The court further held that fair market value was to be determined as of the date the respondent gave notice of his intention to purchase, not as of the date of the life tenant's death, and accepted the estate trustee's appraisal valuing the property at $1.8 million following a municipal by-law exemption permitting separate conveyance of the two lots.

The respondent was afforded 30 days to submit a written offer at the appraised value or be deemed to have waived his rights.

The Court of Appeal for Ontario dismissed the appeal of Ilinka Armstrong and Dean Tully from an order removing them as estate trustees for the estate of Dan Muscat and denied leave to appeal a related costs order.

The court found that Armstrong was in a conflict of interest due to her romantic relationship with a potential purchaser of the estate’s business, failed to disclose this conflict, and did not undertake proper due diligence.

The court upheld the application judge’s decision to remove the trustees and order them to pay costs personally.

This decision interprets the will of William Archibald Stewart, focusing on the vesting and abatement of gifts of farm properties to his sons, Robert and Winfield, and the impact of subsequent events including the assignment of a mortgage to William’s widow, Edith, and her own testamentary dispositions.

The court addresses whether gifts vested at William’s death or Edith’s, the effect of the mortgage assignment, the abatement of gifts to pay estate liabilities, and related issues of constructive trust, unjust enrichment, and executor liability for tax consequences.

This endorsement addresses the costs arising from two motions in an estates matter: one brought by Royal Trust Corporation of Canada (Estate Trustee) to appoint the Public Guardian and Trustee as Litigation Guardian for Raymonde Haddad, and a cross-motion by Doris Haddad-Bejjani seeking her own appointment.

Royal Trust's motion was granted, and Doris's motion was dismissed.

The court, applying the modern approach to costs in estates litigation, found Royal Trust, the Children's Lawyer, and Rosemary Whelan to be successful parties.

Doris Haddad-Bejjani, as the unsuccessful party whose conduct complicated the proceedings, was ordered to pay partial indemnity costs to the successful parties from her testamentary trust.

The balance of Royal Trust's and the Children's Lawyer's full indemnity costs were ordered to be paid from the capital of the Estate.

This endorsement addresses competing motions for the appointment of a litigation guardian for Raymonde Haddad, a mentally incapable beneficiary of the Estate of Paul Haddad.

Royal Trust Corporation of Canada, as Estate Trustee, sought to appoint the Public Guardian and Trustee (PGT) as litigation guardian for Raymonde in ongoing estate proceedings (Interpretation Application and Passing Application).

Raymonde's daughter, Doris Haddad-Bejjani, who had been purporting to represent Raymonde under a Continuing Power of Attorney for Property, brought a cross-motion to be appointed as litigation guardian herself.

The court found Raymonde to be a party under disability based on extensive medical evidence.

Doris's motion was dismissed due to a clear conflict of interest, as her personal interests in the estate's distribution were adverse to Raymonde's.

The court granted Royal Trust's motion, appointing the PGT as Raymonde's litigation guardian, emphasizing the PGT's role as a guardian of last resort when no other proper person is willing and able to act without conflict.

This appeal arose from a dispute between siblings over inherited family companies.

The trial judge found that the parties had an agreement regarding company ownership, that the appellant breached his fiduciary duty to the respondent, and was unjustly enriched.

The appellants challenged these findings, arguing there was no binding agreement, no fiduciary relationship, and that the promissory estoppel claim was invalid and statute-barred.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on the existence of an ownership agreement, unjust enrichment, and breach of fiduciary duty, finding no palpable and overriding error.

The Court noted that the dismissal of the promissory estoppel claim did not affect the outcome.

The appellants, beneficiaries of an estate, appealed a Superior Court order that declared they had no interest in a property, ordered them to vacate, and required them to pay occupation rent.

Their appeal primarily argued that the motion judge erred by failing to grant them an adjournment and by providing insufficient reasons for the denial.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decision.

The court noted that it was not the appellants' first adjournment request, they had received legal advice, and the ongoing delay prejudiced other beneficiaries of the estate.

Costs were awarded against one appellant.

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 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.

The plaintiffs brought a motion for leave to issue a Certificate of Pending Litigation (CPL) against a residential property, an order preserving the property, and an order that the proceeds of sale of another property be paid into court.

The dispute arose between the estate of a deceased sister and the surviving sister over properties originally owned by their mother.

The court dismissed the motion for a CPL and payment into court, finding that damages would be an adequate remedy and the plaintiffs did not demonstrate a serious prospect of ultimate success or risk of dissipation.

The court granted the defendants' cross-motion to permit the sale of the property, provided half the net proceeds are paid into court.

The applicants, children of the deceased, sought declarations of a constructive trust over the survivor's assets based on a mutual wills agreement, alleging breach due to a $200,000 gift and failure to provide information.

The court found that a constructive trust only arises upon breach of the mutual wills agreement, not automatically upon the first testator's death, particularly when the survivor receives assets absolutely.

It was determined that the survivor's gift was not substantial enough to defeat the agreement, nor was her failure to provide information a breach, as the applicants were not beneficiaries under the deceased's will.

The application was dismissed in its entirety.

The applicant, Rosemary Whelan, brought a motion to transfer a passing of accounts proceeding from Toronto to Ottawa.

The Estate Trustee, Royal Trust Corporation of Canada, and other interested parties opposed the transfer.

The court found the motion premature, noting that the application to pass accounts had just commenced in Toronto, and further procedural steps, such as filing objections and a hearing for directions, were pending.

The judge emphasized that a definitive determination of venue, particularly concerning the need for live witnesses, was not yet possible.

The motion for transfer was dismissed without prejudice, with costs reserved to the judge hearing the passing of accounts.

This endorsement addresses costs arising from an unsuccessful and untimely motion brought by Sarah Werner to vary an order appointing a litigation guardian for her mother, Ida Rubin.

The court found Ms. Werner's proposed motion to be an obstructionist tactic, lacking merit, and brought in breach of a scheduling order.

Due to Ms. Werner's reprehensible litigation conduct, the court awarded full indemnity costs against her to the applicant and litigation guardian.

Additionally, costs were awarded to other parties (Morris Rubin and The Bank of Nova Scotia Trust Company) from the estate, with these amounts to be allocated solely to Ms. Werner's share.

Following a 23-day trial that originated as a contested passing of accounts, the unsuccessful plaintiff was ordered to pay costs.

The defendants sought substantial or full indemnity costs based on unproven allegations of breach of trust and unaccepted offers to settle.

The court declined to award elevated costs, finding the allegations did not amount to fraud and the plaintiff was entitled to a trial.

The court fixed partial indemnity costs, significantly reducing claims for travel expenses, expert fees, and excessive trial preparation time, ultimately ordering the plaintiff to pay a total of $721,450 in costs to the various defendants.

The plaintiff, a residual beneficiary of her father's estate, brought an action against the estate trustee, the estate's lawyers and accountants, and the purchasers of the deceased's shares in a family business.

The plaintiff alleged that the estate trustee breached her fiduciary duty by selling the shares without authorization and at an undervalue, and raised numerous objections on the passing of accounts.

The court found that the will authorized the sale of the shares, the estate trustee acted reasonably, and the shares were sold for fair market value.

The claims against all defendants were dismissed.

On the passing of accounts, the court fixed the estate trustee's compensation but reduced it to account for legal and accounting fees that were properly characterized as executor's work.

The plaintiff brought a motion seeking interim dependent’s support from the estate under the Succession Law Reform Act while pursuing claims for constructive or resulting trust over estate property.

The estate trustees sought directions regarding the possible sale of a farm property where the plaintiff resided.

The court held that interim support requires evidence that the deceased failed to make adequate provision for the dependent under s. 58 of the Succession Law Reform Act, and found the plaintiff provided no evidence addressing the adequacy of a $150,000 bequest.

The claim for general interim support was therefore dismissed.

However, the court ordered the estate to reimburse and fund reasonable property maintenance expenses for estate properties occupied by the plaintiff pending trial.

In a professional negligence action involving estate law advice, the plaintiff brought a refusals motion seeking answers to several undertakings and refusals arising from the examination for discovery of a senior lawyer at a defendant law firm.

The court held that questions seeking the lawyer’s legal opinion on the law were improper, as the applicable standard of care would be determined through expert evidence rather than the witness’s own interpretation.

However, certain questions concerning the witness’s personal interpretation of contractual language and matters central to the claim were ordered answered.

On the defendants’ cross‑motion, the court ordered production of all draft expert reports prepared by the plaintiff’s damages expert, preferring authority requiring disclosure of draft reports.

As success was divided, no order for costs was made.