Eddy J. Battiston

This endorsement addresses objections by John J. McAteer to the passing of accounts by the respondents as estate trustees for the estates of their late parents.

The court considers the applicant's entitlement to production of documents, especially those relating to corporations managed by the respondents as attorneys for property for their mother.

The court emphasizes the principle of fiduciary accountability and transparency, discusses proportionality in production, and addresses issues regarding interim distribution and mediation.

The court orders production of relevant documents (with a minor exception), declines to order an interim distribution or mediation at this stage, and directs the parties to cooperate on scheduling.

Four construction lien claimants brought motions for default judgment against the general contractor and the owner of the property.

The general contractor and owner were noted in default.

The court granted default judgment against the general contractor for the unpaid amounts owed to all four claimants.

However, the court found that only one claimant had validly preserved and perfected its claim for lien under the Construction Act.

The court also found the owner liable for the statutory holdback, which was awarded to the sole claimant with a valid lien.

The applicant challenged his deceased mother's new will, alleging lack of capacity and undue influence by his sister, the estate trustee.

The litigation settled, with the applicant accepting the new will's terms after extensive document production.

The court then addressed costs, finding the applicant's claims lacked initial evidentiary support and constituted "scorched earth litigation." The court ordered the applicant to pay the respondents' costs on a substantial indemnity basis, fixed at $74,000, emphasizing the need to protect estates from unwarranted depletion by disgruntled beneficiaries.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning the interpretation of an easement.

The primary issue was whether an easement for "vehicular and pedestrian access and egress" included the right to park.

The application judge had ruled it did not.

The appellant (Friuli Long Term Care) argued the application was speculative and that parking rights were ancillary or an easement of necessity.

The cross-appellant (Primont (Castelmont) Inc.) sought an additional declaration regarding redevelopment.

The Court of Appeal dismissed both the appeal and the cross-appeal, affirming the application judge's finding that the easement did not include parking rights and that parking was a contractual matter.

The court also upheld the refusal of the additional declaration due to procedural issues.

The applicant sought a declaration that mutual easements among the parties, which granted rights for vehicular and pedestrian access and egress, did not include the right for users to park on each other's lands.

The court found that the easements unambiguously dealt only with access and egress, and that parking rights were contractual obligations established through separate agreements, such as a Site Plan Agreement and a tripartite agreement, rather than property rights conveyed by the easements.

The application was granted, and the counter-application was dismissed.

The appellant, Forest Meadows Developments Inc., appealed an order dismissing its application for a declaration that the respondent, Narges Shahrasebi, breached an Agreement for Purchase and Sale (APS).

The core issue was whether the respondent had represented that she would not be able to close on the extended closing date of October 29, 2019, which the appellant argued constituted anticipatory breach.

The Court of Appeal upheld the application judge's finding of fact that no such representation was made, and therefore, there was no anticipatory breach or reasonable reliance by the appellant.

The appeal was dismissed.

The applicants challenged the validity of Fedele Silano's last will and testament, alleging lack of knowledge and approval of its contents and suspicious circumstances surrounding its preparation.

The will significantly altered the distribution of assets compared to an earlier holograph will, primarily by leaving the family residence and a cottage outright to the respondent, Pasquale Silano, rather than a life interest with a gift over to grandchildren.

The court found that the respondent successfully dispelled all alleged suspicious circumstances and that the applicants failed to prove that the testator lacked knowledge of or approval for the will's contents.

The court concluded that the will was valid and could be admitted to probate.

The applicant sought an order for directions to challenge his late mother's will, alleging undue influence and lack of capacity by his brother, the primary caregiver and sole residuary beneficiary.

The court initially declined to sign the consent order, questioning whether the applicant had met the 'minimal evidentiary threshold' required by Neuberger v. York to justify the expense and delay of a formal will challenge.

After hearing arguments, the court granted the order, heavily weighing the respondent's consent and a negotiated term that the applicant would personally fund the investigative steps, which satisfied the goals of proportionality and affordability.

Deep Foundations Contractors Inc. sought full indemnity costs against B. Gottardo Construction Ltd. and its principal, David Gottardo, jointly and severally, following the dismissal of Gottardo's counterclaim and cross-motion.

The court found David Gottardo personally liable for costs due to his wilful disobedience of a court order for financial disclosure, which caused significant delay and unnecessary expense.

The court awarded full indemnity costs, finding Gottardo's and David Gottardo's conduct reprehensible and outrageous.

The appellant appealed a motion judge's discretionary decision refusing to set aside a noting of default.

The motion judge had considered the appellant's failure to comply with an outstanding production order, which could prejudice the respondents.

The Court of Appeal found no basis to interfere with the motion judge's exercise of discretion.

Furthermore, the Court held that Rule 11 of the Rules of Civil Procedure did not apply because the respondents had obtained an order to proceed under section 69 of the Bankruptcy and Insolvency Act.

The appeal was dismissed with costs.

Following dismissal of the plaintiff’s action and success of the defendants’ counterclaim, the court addressed costs.

The plaintiff had engaged in a prolonged campaign of harassment against neighbouring defendants and pursued unfounded allegations during the litigation.

The court held that the conduct before and during the proceeding constituted reprehensible conduct justifying an award of substantial indemnity costs.

Applying the factors in Rule 57.01(1) of the Rules of Civil Procedure, the court fixed substantial indemnity costs in favour of the defendants, with a small reduction in relation to a withdrawn counterclaim.