Evert Van Woudenberg

The appellants challenged an application judge's decision denying them interest on legacies under their father's will.

The testator's final will left monetary legacies of $530,000 each to his two daughters and the residuary estate to his son.

The daughters challenged the will on grounds of undue influence but were unsuccessful.

They then claimed entitlement to interest on their legacies under the common law "rule of convenience," which provides for interest on legacies delayed beyond one year from the testator's death.

The application judge exercised discretion to deny interest, citing the daughters' status as estate trustees and their role in causing delay through the will challenge.

The Court of Appeal allowed the appeal, holding that the "rule of convenience" applied and that the application judge erred in principle by linking entitlement to interest to the reasonableness of distribution within the executor's year, by giving undue weight to the will challenge, and by characterizing interest as a reward or penalty.

The appellant appealed a trial judgment in a contractual dispute involving milestone-based payments for technical work.

The trial judge found that the appellant had repudiated the contract and awarded damages to the respondents.

The appellant raised three arguments on appeal: (1) that the trial judge failed to consider mutual repudiation; (2) that deficiencies in the respondent's work should have been considered as a set-off; and (3) that the trial judge was inconsistent in his treatment of a specific milestone payment.

The Court of Appeal dismissed all three arguments, finding that the trial judge had properly addressed the respondent's conduct, had correctly applied the milestone-based payment structure, and had made distinguishable findings regarding the specific milestone in question.

This decision addresses the costs of an estate dispute where the applicants, two sisters, unsuccessfully challenged their father's final will, alleging undue influence by their brother.

The court reiterated the "loser pays" principle in estate litigation, finding no public policy grounds to deviate or have the estate bear the costs.

The court was critical of the applicants' persistent and personal attacks, noting their conduct prolonged an unnecessary and bitter trial.

Costs were awarded to the respondent on a partial indemnity basis.

The applicants challenged the Last Will and Testament of the deceased, alleging lack of testamentary capacity and undue influence by the respondent.

The court found that the applicants failed to discharge their onus of proving undue influence and that the deceased possessed the requisite capacity to make his will.

The court upheld the August 23, 2013 Will as valid, reflecting the testator's intentions to keep the farm lands in the family and ensure fairness to all children.

Following the dismissal of the moving parties' motion for a Mareva injunction, the respondents sought their costs.

The court awarded substantial and full indemnity costs to the respondents, totaling over $126,000, finding that the moving parties had made serious, unfounded allegations of fraud and breach of trust, and had engaged in inappropriate conduct by raising unrelated regulatory issues to smear certain respondents.

Following a successful appeal, the appellant sought its trial costs.

The parties agreed on most amounts but disputed a $32,025 disbursement for environmental assessment reports prepared prior to the litigation for the purpose of a possible property acquisition.

The Court of Appeal denied the disbursement, holding that the reports were not commissioned in contemplation of litigation and their use at trial did not alter their nature as non-litigation work product.

Trial costs were fixed at $237,364.86.

The appellant purchased a property and subsequently discovered it was contaminated with petroleum hydrocarbons that had migrated from the respondents' neighbouring property.

The respondents had a long history of improper waste storage and non-compliance with Ministry of the Environment orders.

The trial judge dismissed the appellant's claims under s. 99(2) of the Environmental Protection Act, nuisance, and negligence, finding that the appellant failed to prove damages and that an existing MOE remediation order precluded statutory recovery.

The Court of Appeal reversed the decision, holding that the MOE order did not bar civil recovery, that restoration costs were the appropriate measure of damages under the EPA, and that the individual respondent was personally liable.

The Court awarded $1,328,000 in remediation damages and $100,000 in punitive damages.

The plaintiff brought a motion for summary judgment alleging constructive dismissal after the employer replaced her during a medical leave and offered a significantly reduced position at lower pay.

The court held that the employer had already fundamentally altered the employment relationship by hiring a permanent replacement and offering only a demoted role, constituting constructive dismissal.

Summary judgment was granted on liability and reasonable notice was fixed at 15 months, including salary, benefits, and bonus entitlement.

However, genuine issues requiring trial remained regarding aggravated damages and alleged discrimination contrary to the Human Rights Code.

The plaintiff was awarded damages for wrongful dismissal subject to mitigation, while the remaining claims could proceed to further adjudication.

The moving parties, construction lien creditors of the Mady Group of Companies, brought a motion seeking to lift a CCAA stay of proceedings, amend their statements of claim, and obtain a Mareva injunction against several individuals and corporations.

The court dismissed the motion, finding that the moving parties failed to make full and fair disclosure, failed to establish a strong prima facie case of fraud or breach of trust, and provided no evidence of a risk of dissipation or removal of assets from the jurisdiction.

The appellants appealed a decision finding that a retaining wall encroaching on a right of way did not create a substantial obstruction to their rights under a 1916 grant.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were well-supported by the evidence and owed deference.

The respondents' cross-appeal seeking leave to appeal the denial of costs at the application stage was also dismissed, as there was no error in principle.

Dominant tenement holders sought removal of a wall constructed by the servient tenement holders that encroached into a 1916 right of way used as a laneway for ingress and egress.

The court found that although the wall was a permanent structure within the easement, it did not substantially interfere with the use of the right of way because the narrowest obstruction occurred on adjacent municipal property outside the easement.

Evidence showed ordinary vehicles could still pass and no dominant tenement holder had been impeded.

The court also rejected arguments that encroachment created a new easement through adverse possession or that the dominant owners had abandoned part of the easement.

The application was dismissed.

An employee brought an action for wrongful dismissal claiming entitlement to common law reasonable notice after termination following more than seventeen years of service.

The employer relied on a termination clause in an earlier employment agreement entered into with a predecessor company that provided only Employment Standards Act minimum notice plus four additional weeks’ salary.

The court held that the employment contract survived the corporate amalgamation and was binding on the successor company.

The employee continued working for nearly a decade after the acquisition, accepted modifications to certain terms, and never communicated repudiation of the contract.

The termination provisions of the original employment agreement therefore governed the employment relationship.

Following the defendants’ success at trial, the court addressed the appropriate quantum of costs on a partial indemnity basis.

The plaintiff challenged certain components of the defendants’ claim, including $18,000 for services by a lawyer not on the record and $1,000 in disbursements unsupported by receipts.

The court disallowed the claim relating to the lawyer not on the record, finding the authority cited by the defendants inapplicable and the claim incapable of proper scrutiny.

The court rejected the plaintiff’s challenge to the amount of pre‑trial preparation time but required receipts to substantiate the claimed disbursements before awarding them.

Costs were awarded to the defendants on a partial indemnity basis subject to confirmation of the disbursements.

The plaintiff property owner alleged that petroleum hydrocarbon contamination migrated from the defendants’ neighbouring industrial site onto its property and sought damages under the Environmental Protection Act, as well as in nuisance, negligence, and punitive damages.

The court accepted expert evidence that contaminants from the defendants’ property migrated onto the plaintiff’s land, but held the plaintiff failed to prove compensable loss or damage.

Because the Ministry of the Environment had already issued an order requiring remediation, the court found that awarding remediation costs would risk double recovery under s. 99 of the Environmental Protection Act.

The plaintiff also failed to prove actual, substantial physical damage, loss of use, or diminution in value of the property necessary to sustain nuisance or negligence claims.

All claims were therefore dismissed.

The appellants appealed a trial judge's decision rejecting their claim against the respondent regarding an alleged representation about the location and configuration of basketball seats purchased under a licence.

The Court of Appeal found no error in the trial judge's findings that the licence contained no such representations and that no oral representations were made.

The appeal was dismissed with costs awarded to the respondent.

Costs were determined following the plaintiff’s unsuccessful motion for partial summary judgment in an insurance dispute.

The defendant sought substantial indemnity costs, arguing the moving party acted unreasonably in bringing the motion under Rule 20.06(a) of the Rules of Civil Procedure.

The court rejected that argument, finding the motion was brought reasonably given the complexity and uniqueness of the issues.

Applying the ordinary rule that costs follow the event on a partial indemnity basis, the court awarded costs to the responding party while directing expert fees to follow the cause at trial.

The applicants brought a motion to quash the respondents' appeals from two procedural orders made by a case management judge in a multi-party vexatious litigation application.

The Court of Appeal determined that the orders in question, which subjected the application to case management, quashed summonses with leave to reapply, and left fraud allegations open for future determination, were purely interlocutory.

Consequently, the court lacked jurisdiction to entertain the appeals, and they were quashed with costs awarded to the applicants.

The plaintiff credit union, in liquidation, brought a motion for partial summary judgment against its insurer under a fidelity bond.

The claim arose from an internal fraud perpetrated by the credit union's general manager, who engaged in an off-book deposit scheme that disguised a significant capital shortfall.

The insurer denied coverage, arguing that the plaintiff failed to prove a direct loss caused by the dishonest acts and that the losses were indirect or consequential.

The court dismissed the motion, finding that the complex forensic accounting evidence required viva voce testimony and cross-examination at trial to determine causation and quantify the covered loss.

The moving parties (defendants) sought leave to appeal to the Divisional Court from an order dismissing their motion for summary judgment.

The underlying dispute involved the interpretation of an indemnity clause in an agreement of purchase and sale regarding environmental contamination discovered after closing.

The court found there was good reason to doubt the correctness of the motion judge's interpretation, satisfying the first branch of the test for leave to appeal under Rule 62.02(4)(b).

However, the court held that the interpretation of a specific agreement between specific parties did not raise issues of broad public importance.

As the second branch of the test was not met, the motion for leave to appeal was dismissed.

The appellant employer appealed a trial judgment finding wrongful dismissal and awarding 22 months' notice, eight months' Wallace damages, and $25,000 in punitive damages.

The Court of Appeal upheld the finding of no cause for termination and the 22-month notice period.

However, the Court reduced the Wallace damages to four months, finding the employer did not act in bad faith by pursuing unproven allegations of dishonesty, withholding a reference letter, or couriering the respondent's belongings.

The $25,000 punitive damages award was upheld due to the employer's oppressive conduct in blacklisting the respondent's relatives and unlawfully deducting funds from her account at another bank.

The appeal was allowed in part.