Debra L. Stephens

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.

The appellant, Miriam Young, appealed the application judge's interpretation of the residue clause in the last will and testament of Saul Jonas, specifically the meaning of 'in equal shares per stirpes' for the 60% portion of the estate designated for grandchildren and great-grandchildren.

The appellant argued for an interpretation that would benefit the children more, while the Office of the Children's Lawyer (OCL) advocated for an equal division among the grandchildren.

The Court of Appeal applied the 'armchair rule' and upheld the application judge's decision, finding no palpable and overriding error in her assessment of the testator's intention to ensure equal distribution within the beneficiary classes.

The appeal regarding the will's interpretation was dismissed.

The appellant also sought leave to appeal a costs order, which was granted, but that appeal was also dismissed, with a portion of the costs payable personally by the appellant.

The moving party sought to reopen a Court of Appeal decision disposing of appeals concerning guardianship of an incapacitated person.

The moving party alleged that new information had been deliberately concealed, consisting of quarterly reports revealing a $43,000 payment to Section 3 Counsel for appeal work and a $442,000 transfer between accounts.

The moving party contended these payments evidenced an improper litigation agreement and breach of fiduciary duty.

The court dismissed the motion under Rule 2.1.02 as frivolous, vexatious, and an abuse of process, finding the information was not genuinely new and could not have affected the original decision.

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.

Two consolidated appeals concerning guardianship and personal care arrangements for an elderly woman with Alzheimer's disease.

The applications judge appointed one daughter as guardian of personal care and a trust company as guardian of property, with compensation awarded to the daughter for past care services.

A subsequent motion to vary the guardianship order was heard based on changed circumstances.

The appellants challenged the guardianship appointments, the compensation award, and alleged judicial bias and misconduct by the section 3 counsel.

The Court of Appeal dismissed all appeals, finding no error in the applications judge's decisions and rejecting allegations of bias and misconduct.

The moving parties, estate trustees for the deceased's estate, brought a motion to remove the responding party's daughter as her litigation guardian and attorney for property.

The responding party, who was mentally incapable, had appointed her two children as attorneys, but one withdrew due to a conflict of interest.

The court found that the remaining attorney had a conflict of interest, resided outside the jurisdiction, and had previously depleted the incapable person's funds by selling her home and taking the proceeds.

The court removed the daughter as litigation guardian and appointed the Public Guardian and Trustee to act as litigation guardian and guardian of property.

Following a guardianship application and the subsequent death of the incapable person, her former counsel, Swadron Associates, brought a motion for directions under Rule 75.06 regarding unpaid legal fees.

The applicant, Glen Salzman, brought a cross-motion seeking costs personally against the firm.

The court determined several preliminary issues, finding that Swadron Associates had standing under Rule 75.06 but denying its requests for preservation of funds and security for costs.

The court also held that Glen Salzman, as executor, had the authority to waive solicitor-client privilege on behalf of the estate for the purpose of his costs motion, as he was not adverse in interest to the estate on that issue.

The parties sought costs following an appeal where the appellant's appeal on the merits was dismissed, but her appeal on costs was allowed.

The respondent sought full or substantial indemnity costs for the appeal on the merits, arguing the appeal was a continuation of a meritless will challenge.

The Court of Appeal rejected this argument, finding the appeal raised a narrow question of law, and awarded the respondent partial indemnity costs of $32,866.

The appellant was awarded partial indemnity costs of $9,273.30 for her success on the costs appeal.

The amounts were set off, resulting in a net payment of $23,592.70 to the respondent.

The appellant challenged the validity of her late mother's will and four codicils.

The respondent brought a motion for summary judgment to strike the notice of objection, later withdrawing the motion regarding the third and fourth codicils.

The motion judge granted partial summary judgment, admitting the will and first two codicils to probate, and awarded the respondent over $737,000 in costs on a full indemnity scale.

On appeal, the Court of Appeal upheld the partial probate, finding that special circumstances justified a departure from the General Rule of Probate.

However, the Court allowed the appeal on costs, finding the motion judge erred by disregarding the appellant's critique of the respondent's costs simply because she had not filed her own bill of costs.

The costs issue was remitted for reassessment.

Following the dismissal of an appeal regarding a summary judgment motion, the parties made written submissions on costs.

The respondents sought costs on a partial and substantial indemnity basis, while the appellant argued costs should be in the cause due to the unique circumstances and ongoing litigation in Kuwait.

The Divisional Court agreed with the motions judge that the costs claimed were excessive and ordered that the costs of the leave to appeal motion and the appeal be fixed and payable in the cause.

The appellant appealed the dismissal of her motion for summary judgment against the respondent bank.

The dispute involved funds in a bank account originally owned by the appellant's mother, which the bank had transferred to the appellant's brother.

A Kuwaiti court had ruled that the funds belonged to the appellant.

The Divisional Court found that the Kuwaiti judgment was final and that the bank was a privy to the brother, meaning it would be bound by the foreign judgment through issue estoppel.

However, the appeal was dismissed because the appellant's pleadings had not been amended to properly base the claim on the foreign judgment.

In an addendum regarding costs following an appeal, the judge considered the submissions of the parties and the factors set out in Rule 57.01 of the Rules of Civil Procedure.

The judge determined that the disposition of costs should be left to the full panel of the Divisional Court.

The plaintiff sought leave to appeal a decision dismissing her motion for summary judgment against the defendant bank.

The underlying action involved the bank transferring funds from the plaintiff's deceased mother's account to her brother, despite a Kuwaiti court ruling that the funds belonged to the plaintiff.

The motion judge had dismissed the summary judgment motion, finding a genuine issue for trial regarding whether the Kuwaiti decision established the facts pleaded.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision to look behind the foreign judgment's reasoning.

The appellant appealed the trial judge's decisions to strike his statement of claim and declare a mortgage registered to his mother as not binding on a partnership.

The appellant also alleged bias on the part of the trial judge.

The Court of Appeal dismissed the appeal regarding the statement of claim and the bias allegations, finding no substantial wrong and that the trial judge's conduct did not amount to bias.

However, the Court varied the judgment regarding the mortgage, directing that its validity and priority be determined in future proceedings when the property is sold, as the mortgagee was not a party to the action.

The appellant estate challenged a deathbed transfer of land changing title from tenancy in common to joint tenancy, alleging lack of capacity and undue influence.

The Court of Appeal, by majority, held that the trial judge's findings were entitled to deference and were reasonably supported by the evidence.

The majority found the deceased had the requisite disposing mind and memory and that the successful persuasion to sign appealed to fairness rather than amounting to coercion.

A dissenting judge would have found actual undue influence based on the cumulative pressure exerted in the hospital room.

The appeal was dismissed with costs to the respondent payable from the estate.