David Wagner

The succeeding estate trustees moved under Rule 59.06 to vary prior costs awards made after dismissal of their contempt motion regarding document production under an estate judgment.

They argued accidental slip, omission, and newly discovered facts, including post-endorsement waiver of privilege over lawyer file materials.

The court held Rule 59.06 is exceptional, does not permit a re-argument or review of judicial reasoning, and found no error in expressing the court’s manifest intention.

The court also found no new fact justifying variation and dismissed the motion.

This is a costs endorsement following the dismissal of a contempt motion brought by succeeding estate trustees against former estate trustees for alleged breach of a document production order.

The court awarded costs to the successful respondents (former estate trustees), payable from the estate assets rather than personally by the applicants.

The court rejected the applicants' argument that success was divided and clarified that contempt motions must be used as a last resort, not a routine enforcement tool.

The court also addressed the principles governing costs awards in estate litigation and the entitlement of estate trustees to indemnification for reasonably incurred legal costs.

The court addresses costs and pre-judgment interest following a trial regarding the administration of the estate of Ciriaco Forgione.

The applicants, Amato and Luisa Forgione, challenged the conduct of the respondent, Anne-Marie Alonzi, as estate trustee and attorney for property.

The court found that Ms. Alonzi was entitled to substantial indemnity costs from the estate, rejecting the applicants' allegations of wrongdoing.

The court declined to award pre-judgment interest to Ms. Alonzi due to her failure to keep proper records, which necessitated the passing of accounts.

This decision concerns the passing of accounts and compensation claims by Anne-Marie Alonzi, attorney and estate trustee for the late Ciriaco Forgione.

The court reviews the factual and legal context of the family dispute, the duties and compensation of attorneys and estate trustees, and the management of the estate’s properties.

The court finds that, despite record-keeping deficiencies and family conflict, Ms. Alonzi and her husband provided exceptional care to Mr. Forgione.

The court reduces compensation for failure to properly account for cash payments but upholds the majority of the claims, recognizing the challenging circumstances and the value of the services provided.

The Court of Appeal for Ontario dismissed the appeal of Robert and Catherine Hurst, who challenged their removal as estate trustees of the Estate of Ruth Eileen Stevens MacBeth.

The court upheld the motion judge’s discretionary decisions to deny an adjournment, remove the Hursts as trustees, and order a $50,000 holdback from the estate.

The court found no error in the motion judge’s application of the legal tests and awarded costs against the appellants personally, concluding the appeal was unnecessary and not in the interests of the estate.

The plaintiffs brought a motion to amend their statement of claim to reflect the appointment of a litigation guardian and for a finding of contempt against the defendants for failing to attend discoveries.

The defendants sought an adjournment of the motion pending the hearing of a cross-motion to stay the action due to the plaintiffs' alleged lack of capacity and a pending guardianship application.

The court granted the adjournment and stayed the motion to amend, finding that the genuine issues concerning the plaintiffs' capacity and the suitability of the proposed litigation guardian needed to be determined first.

The plaintiffs withdrew their contempt request.

The plaintiff, Valentina Avdeeva, sought substantial indemnity costs against the Estate of Mr. Levon Haftan and personal costs against the Estate Trustee, Caroline Khousehabeh, following a judgment declaring Avdeeva the sole owner of a property.

The court awarded Avdeeva costs on a substantial indemnity basis against the Estate, reduced by 30% for partial success on other claims, totaling $135,242.58.

The court also found the Trustee personally liable for a portion of these costs incurred after she obtained the Order to Continue, due to her reprehensible conduct and pursuit of litigation for personal benefit without estate assets.

The plaintiff brought an action against the estate of a deceased family friend, claiming sole beneficial ownership of two properties and seeking repayment of loans evidenced by promissory notes.

The estate claimed a 50% interest in one of the properties, Bowan Court, arguing it was intended as a matrimonial home for the deceased and the plaintiff's daughter.

The court dismissed the plaintiff's claims regarding the first property and the loans due to pleading deficiencies and lack of corroboration.

However, the court granted the plaintiff's claim for sole ownership of Bowan Court, finding no evidence of a common intention or unjust enrichment to support the estate's trust claims, and ordered the deceased's 1% interest removed from title.

This decision addresses several evidentiary issues that arose during a trial concerning claims of property conversion and trust.

The plaintiff, Valentina Avdeeva, alleges that Levon Khankaldiyan (whose estate is represented by the defendant, Caroline Khoushabeh) converted one property and held another in trust.

The court ruled on the admissibility of newly discovered documents, the personal testimony of the estate trustee (Caroline Khoushabeh), and the evidence of a third-party witness regarding a romantic relationship.

The court admitted new documents under Rule 53.08, finding no undue prejudice.

It largely excluded Caroline Khoushabeh's hearsay evidence due to lack of necessity and reliability, emphasizing the principle against trial by ambush, but allowed her non-hearsay observations.

The court also admitted the evidence of Edward Hambrachian, finding it consistent with disclosure rules despite initial objections, and deferred a decision on the application of the rule in Browne v. Dunn to Levon's discovery evidence, requesting further submissions.

The plaintiff brought a motion to adjourn an 8-day trial scheduled to commence shortly, arguing that the defendant's late disclosure of 147 new documents, including bank statements and documents of disputed authenticity, and a new witness statement, necessitated additional time for review, examination of the affiant, and further inquiries.

The defendant opposed the adjournment, citing the estate trustee's lack of information regarding the new documents and alleging the plaintiff's history of delaying the action.

The court granted a three-week adjournment, finding that the late disclosure was problematic and that the plaintiff deserved the opportunity to properly prepare for trial, prioritizing a fair trial on the merits despite the case's long history.

The plaintiff brought a motion to amend the court's previous reasons for judgment, noting the defendant admitted the market value of the subject condominium unit was $470,000.

The court granted the motion to amend but rejected the plaintiff's substantive claim for $219,600 in damages for loss of opportunity.

The court held that damages for a lawyer's negligence and breach of contract in a failed real estate transaction should be assessed at the date of the breach, not at a subsequent date, as no special circumstances warranted displacing the general rule.

This motion concerned the defendants' application to set aside a Certificate of Pending Litigation (CPL) previously granted ex parte against their property.

The defendants argued material non-disclosure by the plaintiff, lack of plaintiff's assets to cover potential damages, and improper use of the CPL as pre-judgment execution.

The court found that the plaintiff failed to make full and fair disclosure of material facts in the ex parte motion, including the true nature of his claim, his financial capacity to meet damages, the unsigned nature of the underlying agreement, and the absence of key contractual terms (deadlines, subcontractor prohibitions).

Consequently, the court vacated the CPL due to this material non-disclosure, emphasizing the strict duty of candour required in ex parte proceedings.

The court also briefly considered the test for CPLs in fraudulent conveyance actions without a prior judgment, finding that even on that test, the CPL should be discharged.

The plaintiff sued his former real estate lawyer for negligence and breach of fiduciary duty following a failed pre-construction condominium purchase.

The lawyer failed to communicate effectively with the plaintiff's mortgage broker and, without instructions, retracted a proposed closing date and requested a further extension, causing the builder to terminate the transaction.

The court found the lawyer negligent for failing to follow instructions, which did not require expert evidence to establish.

The plaintiff was awarded $62,739.71 in liquidated damages, but his claim for loss of opportunity was dismissed due to a lack of expert appraisal evidence.

The claim for breach of fiduciary duty was also dismissed as the lawyer's actions lacked disloyalty or dishonesty.

The applicant beneficiary objected to the passing of accounts and sought to remove the estate trustee, her brother.

She also objected to the estate trustee's compensation and property management fees paid to their sister.

The court found the accounts met the standard of ordinary care and diligence, the property management fees were reasonable, and the estate trustee's compensation of $267,859.96 was fair based on the Laing Estate factors.

The application to remove the trustee was abandoned, and the accounts were approved as submitted with costs awarded against the applicant.

In a will challenge action, the defendant estate trustees moved under Rule 21(1)(a) to dismiss the plaintiffs' claim that the deceased's wills were void for violating public policy on the basis of gender discrimination.

The court dismissed the motion, finding the defendants could not resile from a prior consent order directing a trial on that issue.

On the issue of disclosure, the court limited the plaintiffs' broad requests for financial and corporate records, ordering production only of documents relevant to the will challenge between 1998 and 2003.

The plaintiffs' cross-motion for costs thrown away was dismissed, but they were awarded $5,000 in costs for responding to the reconstituted motion.

The applicant, a trustee and settlor of a family trust, sought to recover over $1 million from the trust for the 1993 transfer of a farm property, construction costs, and maintenance expenses.

The respondent beneficiaries opposed the claims and sought the removal of the trustees.

The Superior Court of Justice dismissed the applicant's financial claims, finding them to be either undocumented gifts or barred by the expired limitation periods.

The court ordered two beneficiaries to pay arrears for rent and utilities, and ordered one to vacate the property due to serious breaches of her tenancy agreement.

Finally, the court removed all three trustees for failing to properly administer the trust and protect the beneficiaries' interests, ordering their replacement by a professional third-party trustee.

The plaintiff, Nam Dek Lee, brought a motion for summary judgment against the defendant, Jin Mo, his former lawyer, alleging negligence in a failed real estate transaction.

The plaintiff claimed Mr. Mo failed to communicate and seek instructions, leading to the termination of an agreement of purchase and sale and loss of deposit.

The court dismissed the motion for summary judgment, finding that the record did not sufficiently establish causation or the quantum of damages, particularly regarding the increase in condominium value.

The court also addressed Mr. Mo's history of delay and misleading conduct regarding an adjournment request.

The defendant 2623559 Ontario Inc. ("262") moved for an order discharging a certificate of pending litigation (CPL) and a notice registered against a property it purchased.

The plaintiff, Goyal, opposed the motion, alleging the sale was fraudulent and sought rescission.

The court upheld the CPL, finding a triable issue regarding an interest in land and sufficient "badges of fraud" to justify its maintenance.

The decision applied the Dhunna factors and the holistic equitable test, concluding that the equities favored maintaining the CPL.

The applicants, participants in a syndicated mortgage, sought payment out of court of surplus funds from a municipal tax sale after the mortgage went into default.

They had previously settled litigation against their investment advisor for a substantial sum.

The respondents, also mortgage participants, contended that the applicants must account for these settlement funds, which would alter the distribution of the surplus.

The court found no obligation for the applicants to account for the settlement funds, as these were damages from third-party litigation, not proceeds from the mortgage or land.

The court granted the applications for payment out of court based on the First Priority lenders' interests, dismissing the respondents' accounting claim.

The plaintiffs moved to remove estate trustees and spousal trust trustees, and for a receiver over a holding company, alleging misconduct and oppression.

The defendants cross-moved to dismiss the action for delay and for security for costs.

The court dismissed the motions to remove trustees and appoint a receiver, finding sufficient assets secured the plaintiffs' interests and no corporate oppression.

The court also dismissed the defendants' motion to dismiss for delay against the remaining plaintiff, Leslie Barker, but ordered her to post security for costs as a non-resident.