Gerhard M. Schertzer

The moving party, executor of an estate in Saskatchewan, brought a motion to stay or dismiss an application in Ontario regarding a Locked-in Retirement Account (LIRA) on the basis of jurisdiction.

The responding party, the deceased's former spouse residing in Ontario, sought a declaration that she was the designated beneficiary of the LIRA held by CIBC.

The court applied the Van Breda test and found that Ontario had jurisdiction simpliciter because the contract was located in Ontario, the executor lived in Ontario, and CIBC's head office was in Ontario.

The court also declined to find that Saskatchewan was a more appropriate forum, dismissing the motion and awarding costs to the responding party.

At a trial management conference for a will challenge and related gift challenge, the court directed that the two proceedings be tried together to avoid duplicating evidence regarding the deceased's capacity.

The court ordered that evidence in chief be given primarily by affidavit, with limited oral examination, and set a timetable for the exchange of materials and a pre-trial conference.

This was a costs ruling following a contested passing of accounts in estate litigation involving a former estate trustee who sought compensation and discharge after an alleged gift claim created a conflict of interest.

The court held that costs in contested passing of accounts proceedings are governed by s. 131 of the Courts of Justice Act, Rule 74.18, and the Rule 57 factors, and that the modern approach in estate litigation is not to routinely indemnify all parties from the estate.

The court found mixed success, accepted that the former trustee was entitled to reasonable indemnification, but also found delay, inadequate disclosure, improperly formatted accounts, and conflict-related delay attributable to the applicant side.

Costs were apportioned between the estate and the applicant side, with the respondent receiving the larger net award.

Estate trustees sought approval of estate accounts and determination of trustee compensation following the death of an intestate estate trustee before accounts were passed.

The respondent beneficiary objected to several aspects of the compensation calculation, including investment losses, treatment of real estate sale proceeds, payments made to the trustee, accounting fees, and the application of standard percentage-based compensation.

The court held that compensation should not be awarded on losses, that certain disbursements and professional fees should be excluded from compensation calculations, and that reduced percentages were appropriate for some transactions.

Applying the conventional percentage approach cross‑checked against the five-factor analysis for trustee compensation, the court fixed compensation at a reduced amount.

The estate trustee’s compensation was set at $21,761.41 CAD plus $445.81 USD, subject to further submissions on costs and distribution of the remaining estate funds.