David N. Delagran

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.

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 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.

An estate dispute arose concerning the validity of a will, with applicants alleging lack of capacity and undue influence by the respondent.

Following an unsuccessful summary judgment motion by the respondent and subsequent mediation, all substantive issues were settled, but the determination of costs was referred to the court.

The court declined to award costs for the litigation, finding it impossible to determine success or fault without adjudicating the merits of the settled claims.

However, the court ordered that costs previously awarded to the applicants from the summary judgment motion be paid from the estate, and dismissed all outstanding objections and claims to facilitate the respondent's appointment as estate trustee.

An appeal concerning the validity of a continuing power of attorney for property executed by an elderly woman in favour of one of her twin sons.

The appellant challenged the validity of the power of attorney on grounds of undue influence and suspicious circumstances, arguing that the respondent son had coerced the grantor into executing the document by restricting her access to funds needed for basic living expenses.

The motion judge upheld the validity of the power of attorney, finding no evidence of undue influence or suspicious circumstances.

The Court of Appeal dismissed the appeal, holding that the transaction was rational and explicable by the parties' relationship, and that the motion judge correctly applied the law.

The Bank of Nova Scotia Trust Company, as Estate Trustee for Lidia Iaboni, brought an application to pass accounts.

Carlo Iaboni filed a Notice of Objection, alleging exclusion of assets, wealth evaporation, and conflict of interest.

His siblings, Norma Moretto and Ferdinando Iaboni, moved to strike the Notice of Objection, arguing the grounds were without merit, time-barred, and an abuse of process, given prior litigation.

The court found Carlo Iaboni's objections lacked substance, were largely time-barred, and constituted an abuse of process, particularly as he failed to comply with prior settlement minutes and allowed a previous civil action raising similar issues to be dismissed for delay.

The court dismissed Carlo Iaboni's objections and struck his Notice of Objection.

The applicant sought to invalidate a Continuing Power of Attorney for Property granted by his mother to his brother, alleging lack of capacity and undue influence.

The applicant also sought to replace his brother with a professional interim guardian.

The court found that the mother had the requisite capacity to grant the power of attorney and that there was no evidence of coercion or suspicious circumstances to establish undue influence.

The application to replace the attorney was dismissed, but the brother was ordered to pass his accounts annually to ensure transparency.

The plaintiffs moved to enforce a settlement agreement that capped their damages in exchange for the defendants admitting liability and agreeing to a 10-day trial.

The defendants' new counsel argued the trial would take longer than 10 days and sought to avoid the time limit.

Applying the Supreme Court's access to justice principles from Hryniak, the court held the parties to their bargain.

The court ordered strict case management to ensure the trial would be completed within the agreed 10-day timeframe, emphasizing the need for proportionate and efficient procedures.

A costs decision following a summary judgment motion concerning the priority of motor vehicle liability insurance coverage under s. 277 of the Insurance Act.

The moving parties sought full indemnity costs exceeding $39,000, arguing that where insurers share a duty to defend, equitable principles require full reimbursement of defence costs.

The third party insurer opposed, submitting the dispute concerned priority of coverage rather than the existence of a duty to defend, and that only modest partial indemnity costs should be awarded.

The court held that priority disputes between insurers do not give rise to the same contractual obligation to fully indemnify defence costs as duty-to-defend cases.

Considering delay in bringing the motion and the unsettled nature of the law, the court awarded reduced costs.

The defendants were involved in a motor vehicle accident while driving a 'loaner' vehicle provided by a dealership while their own vehicle was being repaired.

The defendants' personal insurer and the dealership's garage insurer disputed which policy should respond in priority.

The court found that the loaner vehicle was not a 'leased' vehicle under the Insurance Act, but rather a temporary substitute vehicle.

The court held that the dealership's garage policy was an owner's policy and therefore stood as first loss insurance.

The motion for summary judgment was granted, requiring the garage insurer to defend and indemnify the defendants.