David N. Delagran

The appellant challenged over $1,700,000 in transfers made by his late mother to his sister, the respondent, arguing they were the product of undue influence or subject to a resulting trust.

The application judge dismissed the application, finding the transfers were valid inter vivos gifts and that there was no undue influence.

On appeal, the appellant argued the application judge erred in his approach to the presumptions of undue influence and resulting trust.

The Court of Appeal dismissed the appeal, holding that the application judge made no legal errors, properly considered the evidence of the mother's clear intention to make gifts, and correctly concluded that any presumption of undue influence was rebutted by findings that the mother acted freely and voluntarily.

The appellant appealed an application judge's decision to rectify his mother's will by adding a remainderman clause that gifted two properties to his niece and nephew upon the termination of his father's life interest.

The drafting solicitor admitted to accidentally omitting the clause.

The Court of Appeal dismissed the appeal, finding that the application judge did not exceed his jurisdiction as a court of construction, as the will could be interpreted to achieve the same result without adding words.

The Court also held that the application judge did not err in his application of the corroboration requirement under s. 13 of the Evidence Act or in his reliance on admissions against interest as extrinsic evidence of the testator's intentions.

The cross-appeal challenging the remedy and costs was also dismissed.

The Court of Appeal for Ontario dismissed the appeal concerning the interpretation of a will provision granting an option to purchase a townhouse.

The court upheld the application judge’s finding that the option was properly exercised within the required time and that the will’s terms were sufficiently certain.

The court also rejected arguments regarding the necessity of a separate agreement of purchase and sale and the relevance of the parties’ subsequent conduct.

Costs were awarded as agreed.

The appellant appealed a trial judgment setting aside her mother's 2016 will and a related property transfer on the grounds of diminished capacity and undue influence.

The trial judge had found that the appellant exerted undue influence over her mother and failed to rebut the presumption of undue influence regarding the property transfer.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's articulation of the legal principles or her application of those principles to the factual findings, which were fully supported by the record.

This decision addresses motions for leave to appeal a costs order issued by the Superior Court of Justice.

Robert Mark Roe, the appellant in the underlying appeal concerning a will challenge, sought leave to appeal the costs award.

Randall Scott Roe, a respondent, brought a cross-motion for leave to appeal the same costs order.

The Court of Appeal dismissed Randall Scott Roe's cross-motion for leave to appeal, finding no error in the application judge's discretionary costs award, which involved a holistic review of the litigation and parties' conduct.

Robert Mark Roe's motion for leave to appeal the costs order was dismissed as abandoned.

No costs were awarded on the motions for leave to appeal.

Robert Mark Roe appealed a lower court decision that upheld his mother's 2005 Will, which disinherited him.

He argued that his mother, Beverly Grace Roe, lacked testamentary capacity due to insane delusions and was unduly influenced by his brother, Rick.

The Court of Appeal affirmed the application judge's findings, concluding that Beverly's beliefs, though at times irrational, had a factual basis, and that she was not unduly influenced.

The court also confirmed that a testator only needs a general understanding of their assets for testamentary capacity.

The appeal was dismissed, and costs were awarded to the respondent Randall Scott Roe.

The moving party, acting as an estate trustee, sought leave to appeal an order of Gilmore J. dated August 22, 2023.

The Divisional Court dismissed the motion for leave to appeal in a brief endorsement and awarded costs of $5,000 to the responding party.

The applicant challenged the validity of her mother's 2016 Will and an inter vivos transfer of the mother's home to the respondent sister, alleging lack of capacity and undue influence.

The mother had a history of cognitive decline and was highly dependent on the respondent, who isolated her from the applicant.

The court found that the mother lacked testamentary capacity at the time the documents were executed and was subjected to undue influence by the respondent.

The 2016 Will and the property transfer were set aside, and the mother's prior 2007 Will was reinstated.

This is a costs decision following an unsuccessful three-week trial where Robert Mark Roe challenged his mother's will and inter vivos gifts.

The court dismissed both actions (Will Action and Gift Action).

The decision addresses the costs sought by Randall Scott Roe (an estate trustee and successful respondent) and Raymond Christopher Roe (another estate trustee).

The court fixed costs, ordering Mark Roe to pay Randall Scott Roe $330,000 in all-inclusive costs, the estate to cover $260,338.03 of Randall's litigation costs, and Randall to be personally responsible for the balance.

Raymond Christopher Roe was reimbursed $170,000 from the estate for his conciliatory approach.

This is an application to pass accounts by an Estate Trustee During Litigation (ETDL) for the Estate of Georgia Manos.

The beneficiary, James Manos, filed objections to the ETDL's compensation and legal fees, alleging mismanagement and excessive costs due to the ETDL's unresponsiveness.

Other beneficiaries did not object to the ETDL's compensation or fees but sought to have James pay costs incurred due to his litigation.

The court dismissed James's objections, finding that the ETDL acted with appropriate care, skill, and responsibility in administering the estate and liquidating foreign assets despite James's obstructive and disproportionate litigation tactics.

The court granted the ETDL's requested compensation and legal fees, ordering James to pay 60% of the legal costs from his share of the Estate on a partial indemnity scale, with the balance payable from the Estate.

The applicant, Steven Lester, sought a certificate of appointment as Estate Trustee based on his deceased father Robert Lester's 2020 will.

The respondents, Robert's other children Glenn and Cathy Lester, objected to the appointment, alleging that their father lacked testamentary capacity and sufficient knowledge/approval of the will's contents.

The court examined the deceased's medical history, the circumstances surrounding the will's execution, and expert opinions on capacity.

The court found no compelling evidence of suspicious circumstances regarding the testator's capacity, knowledge, or understanding, and upheld the validity of the 2020 will and other related estate planning documents.

The application for appointment was granted, and the objections were dismissed.

The parties entered into minutes of settlement to resolve a business dispute.

The settlement required the respondent to produce business records to an accountant, who had to be satisfied with the production before the appellant advanced settlement funds.

The appellant refused to advance funds, arguing the accountant was not satisfied with the sufficiency of the records.

The motion judge granted summary judgment enforcing the settlement.

The Court of Appeal dismissed the appeal, finding the record amply supported the motion judge's conclusion that the accountant was satisfied with the production.

RageOn Inc., an online retailer using Shopify's platform, sought an interim injunction to restore its access to Shopify's services after Shopify terminated their agreement.

Shopify terminated the agreement due to RageOn's repeated violations of its Acceptable Use Policy (AUP), which prohibits hateful content and content associated with terrorist organizations.

RageOn argued the termination was premature, the breaches were not material, and Shopify acted in bad faith.

The court applied the modified RJR-MacDonald test for mandatory interlocutory injunctions, requiring RageOn to demonstrate a strong prima facie case.

The court found RageOn failed to show a strong likelihood of success on the merits, failed to demonstrate irreparable harm, and that the balance of convenience did not favour granting the injunction.

Consequently, RageOn's motion was dismissed.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellant, Beth Ann Markowski, was ordered to pay the respondents, Dwayne David Verhey and Kathleen Anne Verhey, costs fixed at $15,000, inclusive of HST and disbursements, following an appeal from a Superior Court of Justice order.

The minority shareholder of a family company commenced an action for an oppression remedy and asserted a derivative claim without obtaining leave.

The minority shareholder's holding company later commenced an action in debt against the family company.

The defendant in the first action moved to stay the second action as an abuse of process.

The court dismissed the motion to stay, instead ordering the two actions consolidated.

However, the court struck the derivative claim without leave to amend, finding it misconceived, ill-advised, and not brought in good faith.

The appellant owns a cottage lot with a right-of-way over the respondents' beach lot for 'all the usual purposes'.

The appellant sought a declaration that this included the right to launch and retrieve watercraft using a motor vehicle.

The application judge held that the right-of-way was limited to pedestrian access and the portaging of small craft, based on historical use and the intention of the original grantor.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the easement did not permit motorized vehicles to cross the beach.

The mother transferred title of the family cottage to herself and two of her children as joint tenants, while registering a life interest for her other two children.

After the mother's death, a dispute arose over the nature of the life interest.

The motion judge found that the respondent had an exclusive life interest in the property.

The Court of Appeal allowed the appeal, finding that the mother's actual intention was to gift the property to the appellants while granting the respondent a non-exclusive life-time licence to occupy the cottage, consistent with historical family use.

The applicant daughter sought to remove her brother as their incapable mother's Attorney for Personal Care.

The mother had lived with the applicant for 11 years, during which the applicant provided comprehensive daily care and acted as the de facto decision-maker.

The brother, despite being the appointed attorney, failed to act in good faith, refused to reimburse care expenses, and failed to consent to necessary medical treatments.

The court allowed the application, removing the brother and declaring the applicant as the Attorney for Personal Care, finding that the siblings' animosity prevented them from working cooperatively in their mother's best interests.

This application concerned the validity of powers of attorney (POAs) for property and personal care signed by Agnes Adler, a 90-year-old woman, in September 2017.

The applicant, Judy Adler, sought to uphold these POAs, which appointed her and her sister, Andrea Gregor, jointly.

Andrea Gregor, a respondent, challenged their validity, arguing Agnes lacked capacity and was subject to undue influence.

The court also considered the validity of 2015 POAs appointing Andrea solely, the status of Agnes's joint bank accounts with Andrea, and a $25,000 gift from Agnes to Andrea.

The court found the 2017 POAs invalid due to Agnes's lack of capacity to appreciate the consequences of appointing joint attorneys given the sisters' acrimonious relationship, and alternatively, due to undue influence by Judy.

The 2015 POAs, appointing Andrea solely, were upheld.

Andrea was ordered to transfer Agnes's joint bank accounts to Agnes's sole ownership and to repay the $25,000 gift.

The court criticized both daughters for misusing capacity assessments in their litigation.

Following the dismissal of the defendant's motion to set aside a Certificate of Pending Litigation, the successful plaintiffs sought costs of $19,726.56, arguing for substantial indemnity based on an offer to settle.

The court found the offer was arguably not timely under Rule 49 and doubted whether a responding party on a motion is entitled to the same costs consequences as a plaintiff in an action.

Applying principles of proportionality and Rule 57, the court awarded the plaintiffs partial indemnity costs fixed at $10,187.30.