Susan E. Greer

Following a successful motion by certain beneficiaries to strike a will challenge on the basis of estoppel, the court determined costs arising from the motion.

The unsuccessful parties argued that costs should be paid from the estate due to the alleged novelty of applying estoppel to bar a will challenge within the limitation period and contended the claimed costs were excessive.

The court rejected that position, emphasizing the modern principle that estate litigation costs are not automatically payable from the estate.

Applying the factors in Rule 57.01 and the Courts of Justice Act, the court fixed partial indemnity costs for the successful moving parties and reduced certain billed amounts for duplication and excess.

Costs were ordered payable personally by the unsuccessful challengers rather than from estate assets.

Following an 8‑day motion to change relating to support obligations under a prior arbitration award, the court addressed costs.

The responding party on the motion had been successful in obtaining child support, spousal support, and section 7 expenses, and sought full indemnity costs exceeding $340,000.

The court found the moving party acted unreasonably and in bad faith by concealing income, misleading his expert, breaching court orders, and rejecting a reasonable offer to settle.

Applying Rule 24 of the Family Law Rules and the principle of proportionality, the court reduced certain disbursements and paralegal rates but concluded that substantial indemnity costs were justified.

Costs of $297,700.65 were awarded, payable in instalments, with a portion enforceable as part of the support order.

The moving parties sought to strike a will challenge brought by an estate trustee and her son concerning the validity of the deceased’s 2010 primary and secondary wills.

The estate trustee had administered aspects of the estate for over a year, including paying significant estate taxes, relying on the wills in dealings with third parties, and exercising authority as estate trustee.

The court held that her conduct created an assumption among the parties that the wills were valid and that others relied on that assumption to their detriment, particularly in relation to complex estate planning transactions and tax consequences arising from an estate freeze.

Applying the doctrines of estoppel by representation and estoppel by convention, the court concluded that the estate trustee was barred from challenging the wills.

The son’s parallel challenge was also struck because he lacked independent knowledge of the estate and acted as a proxy for the trustee.

The moving party brought a motion to vary prior arbitration awards and a court order governing child and spousal support, alleging a material change in circumstances based on reduced income from restaurant businesses.

The responding party opposed the motion and argued that the payor continued to divert and conceal income through unreported cash transactions and other financial practices.

After extensive expert accounting evidence, the court found the payor’s financial disclosure unreliable and concluded that significant income should continue to be imputed.

The court held that no material change in circumstances had been established and dismissed the motion to vary.

Income of $335,162 was imputed to the payor, resulting in ongoing child support and spousal support obligations along with reimbursement of section 7 expenses.

Following an earlier order granting comprehensive directions concerning the administration of two related estates, the applicants sought costs.

The applicants had successfully obtained an order requiring, among other things, preservation of estate assets and directions relating to the administration of the estates and the conduct of attorneys acting under a power of attorney.

The court found that the responding estate trustees had taken unreasonable positions by refusing to provide an informal accounting and declining reasonable settlement efforts.

Applying the principles of proportionality and reasonableness under Rule 57.01, the court awarded full indemnity costs to the applicants.

Costs were ordered partly against the respondent trustees personally and partly payable from the capital of one of the estates.

The moving parties sought dismissal of a will challenge brought by a beneficiary alleging lack of testamentary capacity and undue influence in relation to two wills.

The court held that the claim was barred by the two‑year limitation period under the Limitations Act, 2002 because the claimant knew or ought to have known of the material facts shortly after the testator’s death yet commenced proceedings more than two years later.

The claimant had received substantial benefits under the wills and actively participated in estate administration, including sale of assets and receipt of distributions.

The court further held that the doctrines of estoppel by convention and estoppel by representation independently barred the challenge because the parties had proceeded on the shared assumption that the wills were valid and the estate trustees relied on that assumption in administering the estate.

The will challenge was therefore dismissed.

Following a successful family law motion granting injunctive relief to prevent dissipation of assets, the moving party sought costs on a full recovery basis.

The court considered Rule 24 of the Family Law Rules and determined that the responding party had acted in bad faith by failing to provide proper financial disclosure, terminating support, and attempting to deal with jointly owned assets while international proceedings were ongoing.

Given the complexity of the litigation, the high financial stakes, and the conduct of the responding party, the court held that full indemnity costs were warranted.

The court ordered payment of substantial legal fees and disbursements to counsel for the moving party within 30 days.

In an estates application concerning capacity and management of property, a respondent brought a motion to prevent the use of a transcript from an examination conducted in unrelated prior litigation.

The applicant sought to rely on the transcript to demonstrate incapacity.

The court held that the transcript was subject to the deemed undertaking rule under Rule 30.1.01 of the Rules of Civil Procedure and could not be used in collateral proceedings without leave.

The court found that the interests of justice did not outweigh the privacy and litigation integrity concerns underlying the rule.

The transcript was ordered to remain sealed and excluded from the application record.

Application arising from a dispute over powers of attorney for property and personal care granted by an elderly individual diagnosed with Alzheimer’s disease.

Competing allegations were made that the son and a friend acting as attorney had each mismanaged the incapable person’s finances, including RRIF withdrawals and the sale of a residence.

The court found significant concerns with the administration of both attorneys and uncertainty regarding the grantor’s capacity when the powers of attorney were executed.

The court appointed the Public Guardian and Trustee as guardian of property in place of the existing attorney and ordered both former attorneys to provide proper accounts for review.

Charitable beneficiaries of an estate brought a motion seeking a contempt finding against the estate trustee for failing to comply with prior court orders requiring the filing of estate accounts and the taking out of an appointment to pass accounts.

The trustee had been personally served and given an additional extension but failed to comply and did not appear at the contempt hearing.

Applying the test for civil contempt, the court found the prior orders were clear and unequivocal and that the trustee deliberately disobeyed them.

The court held the trustee in contempt, removed her as estate trustee, and ordered the appointment of a succeeding trustee to administer the estate and receive all estate assets.

Substantial indemnity costs were ordered against the trustee personally.

Beneficiaries of an estate brought a contempt motion against the estate trustee for failing to comply with a prior court order requiring disclosure of the nature and value of estate assets at the date of death.

Despite repeated requests and a formal order directing production of a statement of assets, the estate trustee failed to provide the required information and instead relied on counsel’s narrative letter that did not meet the order’s requirements.

Applying the three-part test for civil contempt, the court found the order was clear, the trustee deliberately failed to comply, and contempt was proven beyond a reasonable doubt.

The court ordered the trustee to purge the contempt by filing a proper statement of assets, preparing full estate accounts, producing supporting vouchers and legal accounts, and providing a statement of compensation.

Costs were ordered personally against the estate trustee.

Following a successful summary judgment motion enforcing an indemnity agreement relating to a Tarion bond, the plaintiff sought substantial indemnity costs and supplementary damages for additional bond payments and insurance premiums incurred after judgment.

The defendants argued that costs should be limited to partial indemnity and significantly reduced.

Applying the principle that costs should reflect a fair and reasonable amount rather than exact reimbursement, the court fixed costs at $20,427.52 inclusive of HST and disbursements, payable jointly and severally by three individual defendants.

The court also granted supplementary partial summary judgment for additional indemnity obligations arising after the earlier judgment.

The defendants were ordered to pay $26,050.50 for additional bond payments, premiums, and contractual interest.

In complex estate and commercial litigation arising from estate planning transactions and a will that effectively disinherited family members, the plaintiffs sought leave to further amend their statement of claim to add allegations of knowing assistance in breach of trust and fiduciary duty against an accountant and additional particulars against other defendants.

Several defendants opposed the amendment on the basis of prejudice and limitation periods under the Limitations Act, 2002.

The court held that under Rule 26.01 of the Rules of Civil Procedure leave to amend should be granted unless non-compensable prejudice would result, and that disputes about discoverability and limitation periods should be determined by the trial judge on a full evidentiary record.

As discoveries were ongoing and trial remained more than a year away, any prejudice could be addressed through costs.

Leave to amend was granted with costs awarded to certain defendants for prejudice arising from the amendments.

The applicant sought declarations that a life insurance policy issued in 1982 should be enforced according to its original terms, including paid‑up value calculations appearing on the face of the policy.

The respondent insurer alleged that the paid‑up values in the policy were inserted in error and sought rectification to reduce them by a factor of five.

The record contained conflicting affidavit evidence and competing expert opinions regarding the intended structure of the policy and the calculation of paid‑up values.

The court held that the disputes involved material factual conflicts, credibility assessments, and complex issues relating to rectification and limitation periods.

As a result, the matter could not properly be resolved on an application record and required a trial.

Following the dismissal of the respondent’s motion in family litigation, the court determined costs under Rule 24 of the Family Law Rules.

The applicant had been fully successful and sought substantial indemnity costs after prolonged litigation, multiple unsuccessful offers, and the respondent’s continued attempts to relitigate issues contrary to prior orders.

The court found the respondent’s conduct unreasonable, including bringing unnecessary motions and failing to comply with previous orders.

Applying proportionality and the presumption that the successful party is entitled to costs, the court awarded full indemnity costs to the applicant.

The respondent was ordered to pay $33,900 within 30 days and barred from bringing further motions until all costs were paid.

Two lawyers were victims of a fraudulent loan scheme involving counterfeit certified cheques deposited into their trust accounts.

Acting on instructions from fraudsters posing as a financing company, the lawyers issued a trust cheque and bank draft payable to a jewellery business, which were deposited into fraudulent bank accounts.

When the counterfeit instruments were discovered, the bank debited the lawyers’ trust accounts.

The plaintiffs sued the bank for conversion and negligence.

The court held that the payee was neither fictitious nor non‑existing because the drawers intended payment to an identifiable entity, and the collecting bank’s negotiation of the instruments constituted conversion.

A residential property owner brought an action against neighbouring commercial businesses alleging obstruction and misuse of a shared right-of-way and seeking damages and injunctive relief.

The defendants denied interference and counterclaimed for damages and an injunction based on alleged harassment and interference with their business operations.

The court reviewed the scope of easement rights, including the principle that a right to pass and repass does not inherently include a right to park, and considered whether commercial delivery and parking activities unreasonably interfered with other users’ rights.

The court found that certain vehicle parking and delivery practices had at times unreasonably obstructed access but that many issues had improved over time.

A limited injunction regulating parking, delivery vehicle use, and positioning of security lights and cameras was granted, while all claims for damages and the defendants’ counterclaim were dismissed.

A self‑represented former client brought an application seeking assessment of his former solicitor’s legal accounts under the Solicitors Act.

The accounts had been delivered more than 12 months earlier, requiring the applicant to establish “special circumstances” to permit assessment.

The court found special circumstances existed because the solicitor failed to promptly deliver properly signed and detailed accounts and sent several invoices by email long after services had been performed and after the retainer had ended.

Relying on appellate authority emphasizing the importance of the client’s right to assessment, the court exercised its discretion to permit the reference.

All legal accounts were ordered to be assessed by an Assessment Officer.

The appellant appealed a Consent and Capacity Board decision confirming her involuntary admission to a psychiatric facility and finding her incapable of consenting to treatment with antipsychotic medication.

She argued the Board misapprehended the evidence, applied the wrong legal test, and reached an unreasonable decision.

The court held that the appropriate standard of review for mixed questions of fact and law was reasonableness and found the Board’s decision comprehensive and supported by the evidence, including medical records and witness testimony regarding deteriorating mental and physical condition.

The court concluded that the statutory requirements under the Health Care Consent Act and Mental Health Act were properly applied.

The appeal was dismissed.

An elderly co-owner of a multi-unit residential property sought an order for partition and sale under the Partition Act, along with the potential appointment of a receiver/manager pending sale.

The court held that a tenant-in-common has a prima facie right to seek partition or sale unless the opposing party proves oppression, malice, or vexatious intent.

The respondents failed to demonstrate such circumstances, and evidence showed a lack of transparency and accounting in the property's management.

The court ordered that the property be valued and listed for sale, with the respondents given a short opportunity to purchase the applicant’s interest at fair market value.

If no acceptable offer is made, a receiver/manager will be appointed to manage and sell the property.