Erroll G. Treslan

The decision concerns whether withdrawals made by the respondent, Laura Giacomelli, from joint bank accounts shared with her late mother, Giuliana Buffa, constituted valid inter vivos gifts or were subject to a resulting trust in favour of the estate.

The court found that the respondent had rebutted the presumption of resulting trust and that the gifts were valid, not the result of undue influence or unconscionable procurement.

The application for a declaration and tracing order was dismissed.

The court considered a summary judgment motion in a wrongful dismissal case.

The enforceability of the "with cause" and "without cause" termination provisions in the plaintiff's employment contract was at issue.

The court found both provisions unenforceable because they contravened the Employment Standards Act, 2000, following the reasoning in Dufault v. The Corporation of the Township of Ignace and Perretta v. Rand A Technology Corporation.

As a result, the defendant's motion for summary judgment was dismissed, and a further hearing was ordered to determine damages.

This case involved a trial of issues arising from a motion for directions brought by the Estate of John Duncan Maltman against his daughter, Jacquelyne Playter.

The Estate sought disgorgement of funds from a non-registered TD investment account and a TD chequing account, both jointly held by the deceased and Ms. Playter.

The court applied the presumption of resulting trust.

It was determined that the deceased intended Ms. Playter to beneficially receive the proceeds of the joint investment account by right of survivorship, based on clear contemporaneous banking documents and witness testimony.

Regarding the chequing account, Ms. Playter acknowledged beneficial ownership by the deceased but sought to deduct costs for her husband's services in preparing the deceased's home for sale.

The court allowed a partial deduction for these services.

The applicant, Kristy Rae Wheeler, sought costs following her successful motion to remove Allen Wilford and A. Wilford Professional Corporation as counsel for James Bruce MacAulay due to a conflict of interest, and to appoint s. 3 counsel for Mr. MacAulay.

The court found that Mr. Wilford's decision to defend the motion, despite a clear conflict, caused unnecessary costs.

The court awarded Ms. Wheeler partial indemnity costs, with a portion payable personally by Mr. Wilford and the remainder by Mr. MacAulay, as the motion also benefited Mr. MacAulay.

The applicant sought to terminate child support for three adult children.

The court found that one child (Sommer) was no longer a child of the marriage as of June 2019, and another (Dawson) was no longer a child of the marriage as of when he started full-time work in 2021 (date to be determined).

However, the third child (Hailie) remained a child of the marriage due to health issues and a temporary hiatus from studies.

The court varied the interim support order accordingly, but stayed the order regarding Dawson until the applicant complied with a previous financial disclosure order.

No costs were awarded due to divided success.

The applicant sought interim child support for her son from a previous relationship, interim spousal support, and orders regarding access exchanges.

The court found a prima facie case that the respondent stood in the place of a parent to the stepson and ordered him to pay full Guidelines child support for all three children.

The court also found the applicant entitled to interim spousal support based on need and compensatory grounds.

Due to conflict involving the respondent's mother, access exchanges were ordered to occur at a neutral location, with adjusted times for winter driving conditions.

The applicants sought orders regarding an easement for pedestrian passage over the respondents' property, including the permanent removal or opening of a gate, prevention of blocking the easement, prevention of moving personal property from a public beach, and clarification of guest rights.

The court largely dismissed the application, finding that the gate did not substantially interfere with the easement and that the applicants had no legal right to store chattels on the public beach.

However, the court granted a varied order preventing the respondents from blocking the easement for the applicants and specific categories of guests, and clarified the scope of the easement accordingly.

Costs were presumed in favour of the respondents.

The appellant appealed a trial judge's finding that the parties had reached an oral agreement whereby the respondents had an option to purchase unit 116 from the appellant.

The appellant disputed both the existence of the agreement and whether there was sufficient part performance to take the agreement out of the Statute of Frauds.

The Court of Appeal upheld the trial judge's findings, finding no legal error in the determination that consensus had been reached on material terms, that part performance was established through the provision of free ski lessons, and that the trial judge's credibility findings were entitled to deference.

The applicants, children of Theresa Hutter, brought a cross-motion in an ongoing application concerning their mother's capacity and financial management.

Theresa, diagnosed with dementia, had moved to British Columbia with her son Fred (a respondent and her attorney for property).

The applicants sought to amend their application to compel Fred to pass accounts and for specific financial directions.

The court affirmed its jurisdiction despite Theresa's residence in British Columbia, citing the origin of the powers of attorney in Ontario and the presence of assets held in trust in the province.

Leave to amend the application to seek a passing of accounts was granted, as the applicants demonstrated a genuine interest in Theresa's welfare and a reasonable belief that a court might order an accounting.

However, the court declined to order an immediate passing of accounts due to insufficient clear evidence of mismanagement at this stage, instead ordering Fred to provide specific financial disclosure from January 1, 2018.

The court also declined to issue specific directions regarding payments for Theresa's care or property expenses.

The Plaintiffs, Jesse Fulton and Nicole White, sought costs following a successful trial against KOA Aloha Inc. The trial judgment awarded the Plaintiffs $71,146.69 in damages, which fell within the monetary jurisdiction of Rule 76 (simplified procedure).

The Plaintiffs requested substantial or partial indemnity costs, relying on Rule 49.10(1) due to their unaccepted settlement offers that were more favourable than the judgment.

The Defendant argued that Rule 76.13 should deny costs because the action did not proceed under simplified procedure and the Plaintiffs' recovery was within its limits.

The court found that the Plaintiffs made reasonable settlement efforts and beat all offers.

While acknowledging the Rule 76 issue and the Plaintiffs' decision to pursue specific performance and damages over $100,000 under ordinary procedure, the court deemed it reasonable for them to have done so.

The court awarded the Plaintiffs $45,000.00 in all-inclusive costs, representing a reduced partial indemnity to account for the Rule 76 issue.

The plaintiffs and the principals of the defendant corporation were friends who entered into an oral agreement regarding a condominium unit to be used as a team house for a snowboarding program.

The plaintiffs alleged they had an option to purchase the unit, while the defendants claimed the plaintiffs failed to make required monthly payments and terminated the agreement.

The court found that an oral agreement existed, the doctrine of part performance applied to overcome the Statute of Frauds, and the defendants wrongfully terminated the agreement.

The court awarded damages to the plaintiffs based on the market value of the property less the amounts owed to the defendants, declining to order specific performance.

The plaintiff, a commissioned salesperson with 23 years of service, claimed he was constructively dismissed when the employer sent a letter altering his commission structure and reducing his recognized seniority to 16 years.

The court found that while the reduction in seniority was a fundamental change, it was not unilateral because subsequent correspondence showed the employer was open to discussing and verifying his actual start date.

As the change was not unilaterally imposed, the claim for constructive dismissal was dismissed.

The plaintiffs sought a declaration that a lease agreement, attached as a schedule to an expired option agreement for quarry operations, was void.

The defendant sought the opposite declaration and substantial damages.

The court found that the option agreement had expired, the lease was never activated due to unfulfilled conditions precedent, and the lease terms themselves were unconscionable, particularly regarding property description, access rights, and allocation of rehabilitation and licensing costs.

The court declared the lease void and awarded the defendant only the expenses incurred after the option agreement's expiry, rejecting claims for expenses incurred during the option period as they were at the defendant's risk.

The plaintiff builder sued the defendants for unpaid amounts related to the construction of their home, including authorized changes and extras.

The defendants disputed the costs, alleged deficiencies, and argued the contract was illegal due to the builder's non-registration with Tarion.

The court found the plaintiff proved its claim for the changes and extras, concluding that the defendants received a good deal.

The court rejected the argument that the contract was void due to Tarion non-registration, noting the parties' equal sophistication and deliberate choice to proceed outside the legislation, and affirmed that the claim would succeed on a quantum meruit basis regardless.

Judgment was granted for the plaintiff for a principal amount of $70,065.82, plus prejudgment and post-judgment interest at the Courts of Justice Act rate, denying the plaintiff's claimed 2% per month interest.

The respondent, David Thomas McCombe, brought a motion seeking an order compelling the applicant, Laura Marie McCombe, to annually sign documentation for tax purposes regarding spousal support, child support, and Section 7 contributions.

The court granted the request for acknowledgements of spousal support, child support, and Section 7 expenses, including copies of receipts, with the caveat that the applicant should not incur out-of-pocket costs.

The motion was denied regarding documentation for fitness and medical expenses for the children, as the existing Final Order was deemed sufficient and the proposed wording was inappropriate.

The plaintiff landlord brought an action for breach of contract after the defendant tenant vacated commercial premises three weeks after moving in and refused to pay rent.

The tenant argued there was no binding lease agreement, only an agreement to agree, or alternatively that the landlord committed a fundamental breach due to zoning issues and incomplete renovations.

The court found that the signed Offer to Lease contained all essential elements and constituted a binding agreement.

The court rejected the fundamental breach arguments, noting the tenant's complaints were inconsistent, mostly resolved, or not the landlord's responsibility under the 'as is' clause.

The landlord was awarded damages for lost rent, less fit-up costs for new tenants, with interest at 12% per annum compounded monthly.

The respondent father brought a motion for summary judgment dismissing the applicant mother’s claims for spousal support, property division, and sole custody.

The mother filed no responding materials and failed to appear on the motion.

The court held that summary judgment was not appropriate for the spousal support and property claims because the evidentiary record was incomplete, largely due to disclosure deficiencies.

However, relying on an uncontradicted Office of the Children’s Lawyer report and the father’s affidavit evidence, the court found no genuine issue requiring a trial on custody and access and granted the father sole custody with access to the mother.

The remaining financial claims were permitted to proceed to trial.

Following a family law trial addressing spousal support and child support including section 7 expenses, the court determined the issue of costs.

Although success at trial was largely divided, the applicant had made a written offer to settle shortly before trial that was close to the outcome ultimately ordered.

The court held that while the offer did not satisfy the strict requirements for presumptive cost consequences under Family Law Rule 18(14), it could still be considered under Rule 18(16) when assessing costs.

Taking into account the divided success, the respondent’s limited ability to pay, and the policy objective of encouraging settlement offers, the court awarded nominal costs to the applicant.

The applicant brought a motion to change prior orders seeking termination of child support for four adult children and termination of spousal support.

The court found a material change in circumstances but held that the respondent remained entitled to spousal support on a needs basis due to significant income disparity and ongoing health issues.

Spousal support was continued at the previously ordered amount of $800 per month with a potential review after August 1, 2016.

Child support was terminated retroactively on different dates corresponding to the children’s completion of post-secondary education, and the applicant was entitled to credits for overpayments.

The court also found that spousal support ordered in 1998 remained separate from a later child support order, resulting in spousal support arrears of $79,807.32.

On a family law motion involving multiple interim issues following separation, the court considered custody and access, spousal support, travel restrictions, financial disclosure, and ancillary matters.

The respondent sought sole custody or shared parenting, but the court declined to disturb the existing temporary status quo pending involvement of the Office of the Children’s Lawyer and fuller evidentiary development.

The court ordered mid‑range spousal support under the Spousal Support Advisory Guidelines, adjusted downward to account partially for the applicant’s ongoing expenses maintaining the former family home in another jurisdiction.

The court varied an earlier order to permit the parties to travel with the children within Canada and to Ohio, but declined broader international travel.

Mutual financial disclosure and other interim directions were also ordered.