David M. Lobl

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 appellants appealed from a judgment dismissing their action and declaring the appellant a vexatious litigant under s. 140 of the Courts of Justice Act.

The Court of Appeal agreed with the reasons and conclusions of the motion judge and dismissed the appeal, awarding costs to the respondents.

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.

The appellant appealed a decision removing the respondent as estate trustee, passing over the appellant as alternate estate trustee, and appointing a trust company as the sole succeeding estate trustee.

The appellant argued that the respondent had already been deemed to have renounced her appointment and that he should not have been passed over.

The Court of Appeal dismissed the appeal, finding that the respondent had intermeddled in the estate, meaning she could only be relieved of her duties by court order.

The Court also upheld the decision to pass over the appellant due to his strong animosity towards the respondent, which risked creating a deadlock in the administration of the estate's corporate assets.

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.

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.

The appellant appealed an order giving directions regarding the trial of an issue over the capacity to execute a power of attorney.

The respondent consented to a minor wording addition to the order.

The Court of Appeal held that no further changes were required, as the phrase 'knowledge and approved' merely identified the issue to be tried without precluding arguments on the appropriate legal test.

The appeal was otherwise dismissed with no order as to costs.

The applicant sought leave to appeal an order dismissing his motion to require his parents to undergo capacity assessments and to allow him to examine his mother for discovery.

The underlying dispute involved the validity of powers of attorney executed by the mother, who suffered from Alzheimer's disease.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision.

The court held that section 79 of the Substitute Decisions Act, rather than section 105 of the Courts of Justice Act, governed the request for a capacity assessment, and that the motions judge properly exercised his discretion in refusing the assessments and discovery.