Gregory J. Verbeem

This decision addresses costs following a successful application where the proceeds of a joint bank account, held by the deceased and his daughter Nicole Rocheleau, were declared an asset of the estate rather than a personal gift to Nicole.

Nicole, an estate trustee, sought her costs from the estate, arguing the litigation arose from the testator's actions.

The court denied Nicole's request for costs from the estate, finding she acted in her self-interest and not for the benefit of the estate.

The court awarded partial indemnity costs to the applicant, payable personally by Nicole, due to Nicole's unreasonable conduct during the litigation and her pursuit of a personal benefit.

Following a jury trial for a motor vehicle accident where the plaintiff's action was dismissed for failing to meet the statutory threshold, the successful defendant sought over $104,000 in costs plus disbursements.

The plaintiff argued no costs should be awarded due to her impecuniosity and the defendant insurer's alleged failure to attempt settlement under the Insurance Act.

The court found the insurer did not breach its duty to settle by taking a hard-line defensible position.

However, considering the plaintiff's limited financial means and the modest complexity of the case, the court reduced the defendant's costs and fixed them at $40,000 all-inclusive.

The applicant sought a determination regarding the proceeds of a joint bank account formerly held by the deceased, Louis Rocheleau, and his daughter, Nicole Rocheleau.

The court found that the presumption of a resulting trust in favour of the estate was not rebutted by Nicole Rocheleau.

She failed to establish that the proceeds or the beneficial right of survivorship were the subject of a valid and completed inter vivos gift, specifically lacking proof of donative intent, acceptance of the gift prior to the donor's death, and the donor's capacity to gift Rachel Rocheleau's interest.

Consequently, the funds in the joint account were deemed an asset of Louis Rocheleau's estate.

The plaintiff purchased a commercial property to operate a hair salon.

She sued her real estate agent and his brokerage for negligent misrepresentation, alleging the agent falsely guaranteed that four specific parking spaces on an adjacent lot were included in the purchase.

The court dismissed the action, finding the plaintiff's evidence unreliable and accepting the agent's evidence that he only provided an equivocal response and promised to follow up with the listing agent.

The court found the agent did not make the alleged unequivocal statements of fact.

The action was dismissed, with damages provisionally assessed at $7,696 for the value of the parking spaces had liability been found.

The court determined costs following a successful summary judgment motion by the Belleville defendants, dismissing the action against them.

The plaintiffs sought to defer the costs decision or reduce the quantum, arguing potential Bullock/Sanderson orders, impecuniosity, and public interest litigation.

The court dismissed the deferral request, finding no exceptional circumstances to deviate from the normative approach to costs.

It found the plaintiffs were of modest means but not impecunious, requiring robust evidence for such a claim.

The court also rejected the "pro bono litigant" analogy for parties represented under a contingency fee agreement, citing the Solicitors Act.

Ultimately, costs were fixed at $47,801.47, jointly and severally against the plaintiffs, reflecting a reduction from the partial indemnity amount due to the plaintiffs' modest means and access to justice considerations.

The applicant, Darren John Pundyk, sought an order of certiorari to quash a committal order made by a preliminary inquiry judge, which required him to stand trial on charges of robbery with a handgun, possession of a break-in instrument, possession of a weapon for an indictable offence, and disguise with intent.

Pundyk argued that the preliminary inquiry judge exceeded jurisdiction by committing him despite an alleged absence of evidence on the essential element of identity.

The court reviewed the preliminary inquiry judge's decision, applying the "some evidence" test for committal based on circumstantial evidence.

The court found that there was sufficient circumstantial evidence from which a properly instructed jury could reasonably infer the applicant's identity as one of the robbers, and therefore, the preliminary inquiry judge did not act without jurisdiction.

The application for certiorari was dismissed.

Police defendants brought a motion to strike numerous paragraphs of an affidavit filed by plaintiffs’ counsel in response to a pending summary judgment motion in a civil action alleging negligent investigation, malicious prosecution, false imprisonment, and Charter breaches.

The impugned affidavit summarized discovery evidence, relied on hearsay and discovery transcripts of multiple parties, and included argument, opinion, and allegedly inflammatory allegations.

The court reviewed the admissibility of affidavit evidence under the Rules of Civil Procedure, including rules governing hearsay, discovery evidence on motions, and improper argument in affidavits.

The court permitted reliance on certain discovery transcripts already filed by the moving parties and allowed narrative evidence derived from other parties’ discovery where proportionality and fairness warranted.

However, numerous passages containing argument, opinion, speculation, or inflammatory allegations were struck.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered by the plaintiff against their properties.

The plaintiff, an electrical subcontractor, alleged that the defendant contractor breached the statutory trust provisions of the Construction Lien Act by misappropriating funds to maintain and improve the subject properties.

The defendants argued that a breach of trust claim cannot give rise to an interest in land and denied using trust funds for the properties.

The court found that a claim for a remedial constructive trust arising from a breach of statutory trust can support a CPL.

Due to the defendants' failure to provide a proper accounting of the trust funds, a triable issue remained regarding the plaintiff's interest in the lands.

The motion to discharge the CPL was dismissed.

The applicant brought a motion seeking an order compelling the respondent spouse to cooperate as guarantor in the renewal of a mortgage on the matrimonial home at a lower interest rate.

The applicant argued the order was authorized under provisions of the Family Law Act relating to preservation and encumbrance of the matrimonial home.

The court declined to determine whether it had jurisdiction to compel a non‑titled spouse to guarantee the mortgage and, in any event, declined to exercise such jurisdiction given that the mortgage could be renewed without the guarantee and the home would likely be sold.

Instead, the court addressed the financial impact by ordering an increase in spousal support equivalent to the difference between the mortgage payments with and without the guarantee, grossed up for tax.

No order was made as to costs due to mixed success.