Gregory M. Sidlofsky

Following the dismissal of the appellants' appeal regarding trustee compensation on a passing of accounts, the parties made written submissions on costs.

The respondent (former trustee) sought full indemnity costs of $134,394.86, while the appellants argued for partial indemnity costs payable by the trust and sought their own costs from the trust.

The Divisional Court held that the respondent was entitled to full indemnity costs because he incurred them in his capacity as trustee.

The court fixed the respondent's costs at $90,000 all-inclusive, ordering a blended costs award where the appellants pay 60 percent and the trust pays 40 percent.

The appellants were ordered to bear their own costs.

In a will challenge action, the defendant estate trustees moved under Rule 21(1)(a) to dismiss the plaintiffs' claim that the deceased's wills were void for violating public policy on the basis of gender discrimination.

The court dismissed the motion, finding the defendants could not resile from a prior consent order directing a trial on that issue.

On the issue of disclosure, the court limited the plaintiffs' broad requests for financial and corporate records, ordering production only of documents relevant to the will challenge between 1998 and 2003.

The plaintiffs' cross-motion for costs thrown away was dismissed, but they were awarded $5,000 in costs for responding to the reconstituted motion.

Following a successful motion for summary judgment in a fraudulent conveyance action, the plaintiff sought costs on a substantial indemnity scale against the defendants and the intervenor.

The court noted the defendants' delay tactics, unfounded allegations of fraud, and lack of credibility.

The court awarded the plaintiff costs of $175,000 against the defendants and $30,000 against the intervenor, finding the amounts reasonable given the complexity introduced by the defendants' failed defenses.

The plaintiff brought a motion for summary judgment to declare the transfer of a property from the judgment debtor to his spouse as a fraudulent conveyance.

The transfer occurred shortly after a draft judgment of $1.5 million (U.S.) was released against the debtor.

The defendants argued the plaintiff lacked standing, the action was statute-barred, and counterclaimed for slander of title.

The court found the transfer was a fraudulent conveyance intended to defeat creditors, dismissed the defendants' motion to adduce new evidence, dismissed the counterclaim, and granted summary judgment in favour of the plaintiff, including a tracing order to a subsequently purchased property.

The appellants, beneficiaries of a family trust, appealed a trial judge's decision on the passing of accounts of the respondent trustee.

They argued the trial judge provided inadequate reasons, erred in failing to find a conflict of interest when the trustee hired lawyers from his own firm, and awarded unreasonable compensation.

They also sought leave to appeal the full indemnity costs awarded to the trustee.

The Divisional Court dismissed the appeal and denied leave to appeal costs, finding the trial judge's reasons were adequate in context, there was no palpable and overriding error in finding no conflict of interest, the compensation reduction was reasonable, and the costs award properly reflected the public policy of indemnifying trustees for reasonable administration expenses.

The moving parties brought a motion for leave to appeal an order of Myers J. dated November 2, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $7,500.

The applicant sought to challenge his deceased father's 2019 Will, which left the entire estate to the applicant's mother.

The respondents moved to dismiss the application for lack of standing, relying on a 1996 Will that also left the entire estate to the mother.

The court found that the applicant failed to present sufficient evidence to challenge the validity of the 1996 Will.

Consequently, even if the 2019 Will were invalid, the applicant would have no financial interest in the estate under the 1996 Will.

The court also rejected the applicant's argument that his separate civil claim for proprietary estoppel gave him independent standing under s. 23 of the Estates Act.

The motion was granted and the application dismissed.

The plaintiff and defendants were 50 percent owners of a corporation whose sole asset was a property intended for gas station development.

Following a breakdown in their relationship, the defendants sold the property to a third party without the plaintiff's consent.

The plaintiff brought a motion for an oppression remedy to remove the defendants from management, while the defendants sought to wind up the corporation.

The court dismissed both requests, finding no oppressive conduct and concluding that a winding up was not just and equitable at this stage.

The court granted a motion to rescind the sale of the property and ordered the return of the purchase funds held in court, less outstanding costs owed to the plaintiff.

The applicant brought a motion for summary judgment to dismiss the respondent's action regarding the allocation of shareholdings in a holding company.

The parties, former spouses, disputed whether the respondent owned 30% or 50% of the shares, with the respondent claiming a constructive trust over 20% of the shares due to family law and unjust enrichment principles.

The court found that the corporate records were deficient and that the intertwined family law complexities, including the respondent's decision not to seek an equalization payment, created critical factual disputes.

The court concluded there was a genuine issue for trial and denied summary judgment.

Melissa Hrvoic brought a motion seeking to compel Aaron Franks to answer 53 questions refused on grounds of solicitor-client and litigation privilege during a Rule 39.03 examination.

The motion also faced dismissal due to Melissa Hrvoic's non-compliance with a prior interlocutory order to return $500,000.

The court found the questions relevant and the privileges properly asserted.

It determined that Mr. Hrvoic had not waived privilege by including an explanatory letter from his lawyer in the record, as this did not constitute using legal advice as a material fact in his claim or defence, nor was it equivalent to filing an affidavit.

The court also dismissed the motion due to Melissa Hrvoic's non-compliance with Justice Dow's order.

The moving party sought leave to appeal the order of Dow J. dated March 10, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 for the stay motion and $5,000 for the motion for leave to appeal to the responding party.

The applicant sought relief from forfeiture arising from an agreement of purchase and sale after breaching a term requiring the vendor's prior written consent to list or sell the townhouse.

The applicant had listed and sold the property without consent, leading the respondent vendor to terminate the agreement and forfeit deposits and occupancy fees.

The court dismissed the application, finding the applicant's conduct, the gravity of the breach, and the disparity between the forfeited property value and damages did not warrant relief from forfeiture.

Furthermore, the retention of the deposit and occupancy fees was not found to be unconscionable, considering the commercial context and the applicant's sophistication.

This endorsement addresses a procedural case conference concerning ongoing litigation between separated spouses.

The applicant, Mr. Hrvoic, initiated an application for Ms. Hrvoic to sell her shares in a family business.

Following Mr. Hrvoic's termination of Ms. Hrvoic's employment, Ms. Hrvoic "borrowed" $600,000 from a line of credit.

Dow J. subsequently ordered Ms. Hrvoic to repay $500,000 of this amount.

Ms. Hrvoic now seeks leave to appeal this term and an urgent stay pending appeal.

The court noted the parties' contentious approach and set a schedule for the motion for a stay pending appeal, declining to grant an interim stay.

The plaintiffs and defendants, former business partners in the security surveillance equipment industry, brought competing motions for interlocutory injunctive relief following a bitter separation.

The plaintiffs sought to enjoin the defendants from using a disputed trademark, accessing the plaintiffs' computer systems, and making defamatory statements.

The defendants cross-moved to enjoin the plaintiffs from competing and soliciting customers.

The court dismissed the trademark injunction, finding damages were an adequate remedy, but granted the injunctions regarding computer access, website redirection, and defamation.

The defendants' cross-motion was dismissed as premature and lacking evidence of irreparable harm.

The appellant appealed from an order of the Superior Court of Justice dismissing his application against his daughters regarding the transfer of a mortgage from a family company to a family trust.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the order arose from an oppression application under the Business Corporations Act, for which the proper appellate route is to the Divisional Court, not the Court of Appeal.

The court rejected the appellant's arguments that section 6(2) of the Courts of Justice Act or Rule 6.01(1) of the Rules of Civil Procedure permitted the Court of Appeal to hear the appeal, and declined to reconstitute itself as the Divisional Court.

The appeal was transferred to the Divisional Court.

The appellant appealed the motion judge's order striking his statement of claim and dismissing his action against his daughters and their company.

The appellant sought to challenge the validity of a family trust established in connection with an estate freeze in 2007.

The motion judge had struck the claim on the basis of res judicata, collateral attack, and abuse of process, finding that the appellant could have raised the validity issue in the daughters' prior oppression application but failed to do so.

The Court of Appeal upheld the motion judge's decision, finding that the doctrine of abuse of process alone warranted striking the claim, as allowing the action to proceed would constitute an attempt to relitigate a matter already decided.

The appellant appealed a decision dismissing his application for a declaration of ownership and exclusive use of a disputed strip of land based on adverse possession.

The strip had been enclosed by a fence between two properties from December 1992 to December 2002.

The application judge found that while actual possession was established, the appellant failed to prove the requisite intention to exclude the true owner or effective exclusion.

The Court of Appeal upheld the dismissal, finding no errors of law or principle in the application judge's reasoning and confirming that the presumption of intention to exclude arising from a fence is not mandatory and may be rebutted by the absence of corroborating evidence.

This is a costs endorsement following the dismissal of the respondent's summary judgment motion in an estate litigation matter.

The applicants sought substantial indemnity costs against the respondent personally.

The court found the respondent personally liable for costs, rather than the estate, as the litigation stemmed from his personal conduct as power of attorney and estate trustee.

Crucially, the court found the respondent's counsel breached his duty of candour to the court by failing to disclose a directly on-point, adverse binding authority (Wall v. Shaw) during submissions.

This breach of professional conduct was a significant factor in the decision to award substantial indemnity costs to the applicants.

The respondent, in his personal capacity and as estate trustee, moved for summary judgment to dismiss claims by his siblings (the applicants) regarding nine Arizona properties.

The respondent argued the claims were statute-barred, subject to res judicata, or did not raise a genuine issue for trial.

The court dismissed the motion, finding that res judicata did not apply as the issues were not determined in a prior passing of accounts, and the limitation periods under the Trustee Act or Limitations Act, 2002 did not apply to notices of objection in a passing of accounts application.

The court also found that the respondent failed to account for inter vivos gifts of property, raising factual and legal questions requiring a trial.

The defendant 2623559 Ontario Inc. appealed a Master's decision dismissing its motion to discharge a certificate of pending litigation on a property.

The plaintiff, a 50% owner of the vendor corporation (2425779 Ontario Inc.), alleged the sale to 2623559 Ontario Inc. was fraudulent and below market value.

The court upheld the Master's decision, finding no palpable and overriding error or error of law.

The Master correctly applied the test for discharging a CPL, considering the plaintiff's reasonable claim to an interest in land, the alleged "badges of fraud" in the transaction, and the "Dhunna factors" regarding the uniqueness of the land and the inadequacy of damages as an alternative remedy.

The court also determined that the alternative security paid into court was insufficient to protect the plaintiff's potential interest, which was significantly higher than the amount secured.

The appeal was dismissed with costs awarded to the plaintiff.