Hari S. Nesathurai

This is a costs endorsement following an appeal.

The Court of Appeal fixed the costs of the appeal at an all-inclusive amount of $10,000, payable by the appellant from their share of the estate to the respondent.

This appeal concerned an acrimonious estate dispute between two sisters regarding their deceased mother's modest estate.

The primary issue was an allegation that a joint tenancy in the matrimonial home had been severed by a testamentary disposition.

The Court of Appeal upheld the application judge's decision, finding no error in dismissing an adjournment motion, appointing one sister as the sole executrix, and ruling that the joint tenancy was not severed by a testamentary disposition alone.

The court emphasized the importance of expeditious and proportionate resolution of estate matters.

The moving party brought a motion for leave to appeal an order dated October 14, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $4,000.

The defendants moved to set aside ex parte orders that granted the plaintiffs certificates of pending litigation against certain properties and appointed a monitor over two furniture store franchises.

The dispute arose from an intra-family sale of the franchises, where the plaintiffs alleged the defendants made misrepresentations about the transaction's proceeds and the inclusion of additional properties.

The defendants argued the ex parte orders should be set aside for failure to make full and fair disclosure.

The court dismissed the motion, finding no material non-disclosure, and maintained the certificates of pending litigation and the monitor, concluding that a triable issue remained and the balance of convenience favoured the plaintiffs.

The applicant sought judicial review of a decision by the Health Professions Appeal and Review Board, which upheld a College committee's decision regarding an emergency physician's conduct.

The physician had begun completing a Form 1 under the Mental Health Act after the applicant staged a suicide attempt, but stopped when the applicant admitted it was faked.

The applicant sought the unconditional removal of the incomplete Form 1 from his hospital chart.

The Divisional Court dismissed the application, finding the Board's decision reasonable, as the Personal Health Information Protection Act does not grant patients the right to demand the destruction of their medical records.

The plaintiffs sought an adjournment of the defendants' motion to set aside ex parte orders for certificates of pending litigation and the appointment of a monitor.

The plaintiffs argued that the defendants had provided insufficient notice, served materials late, failed to serve the court-appointed monitor, and that cross-examinations of the defendants' affiants were necessary.

The court granted the adjournment, emphasizing that the defendants' delay in seeking a court date negated any claim of urgency, and that the plaintiffs had a right to cross-examine and the court required the monitor's input.

The decision underscored the importance of communication and cooperation in litigation and the need for proper justification when seeking to abridge procedural timelines.

The plaintiff brought a motion to extend a court-ordered deadline for serving an amended statement of claim to add a winter maintenance contractor as a defendant.

The presumptive limitation period had expired, but a previous order allowed the addition based on discoverability, setting a service deadline of March 31, 2016.

The plaintiff failed to meet this deadline and delayed over two years before bringing this motion.

The court dismissed the motion, finding the plaintiff failed to adequately explain the delay, show inadvertence, or prove that the proposed defendant would not suffer prejudice.

The appellant, a 52-year-old investment advisor, was petitioned into bankruptcy in 2011 by RBC Dominion Securities Inc. after misappropriating $5 million from clients.

While in bankruptcy, he had a net monthly income of $14,600 with surplus monthly income of $12,500 but failed to make any surplus income payments.

The registrar in bankruptcy ordered that as a condition of discharge, the appellant pay $284,346 in surplus income at $5,000 per month, plus an additional $5,000 per month for six years ($360,000 total), with discharge suspended for two years.

The appellant appealed, arguing the treatment of surplus and other income was in error and that the lower court judge improperly rewrote the registrar's decision.

The Court of Appeal dismissed the appeal, finding the registrar's order was discretionary, well-supported by evidence, and reasonable given the appellant's substantial income and ability to pay.

The appellants appealed a trial judgment that imposed a constructive trust over their properties, declared that Venanzio Pingue was not a shareholder of the respondent company, and removed him as an officer and director due to breach of fiduciary duties.

The trial judge found that Venanzio had misappropriated $592,671.43 from the company and never paid for his shares.

The appellants argued the trial judge erred in interpreting the parties' written agreements and in refusing to admit their expert report.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the agreement or her discretionary decision to exclude the late expert report.

The court also dismissed the motion to admit fresh evidence and the motion for leave to appeal the costs order.

This is a procedural appeal concerning the construction of the trial record.

The respondents sued the appellants for misappropriation of funds from an apartment building.

At trial, the trial judge relied on expert accounting evidence from the respondents' expert and refused to allow the appellants to adduce their own expert evidence late in the trial.

On appeal, the appellants sought to include in their appeal book both their own expert's report and portions of the respondents' expert's report that had not been made exhibits at trial.

A chambers judge ordered these materials excised from the appeal book.

The appellants appealed this decision to the panel.

The bankrupt appealed a Master's order granting a conditional discharge that required him to pay $284,346 in accumulated surplus income and an additional $5,000 per month for six years.

The bankrupt argued the Master erred by treating the additional payments as a recalculation of surplus income under section 68 of the Bankruptcy and Insolvency Act.

The Superior Court of Justice dismissed the appeal, finding that the Master properly imposed the additional payments as a condition of discharge under section 172, not as a recalculation of surplus income.

The court held the condition was reasonable given the bankrupt's substantial ongoing disability income, his failure to pay surplus income during the bankruptcy, and his lack of remorse for misappropriating $5 million from clients.

The appellant appealed an order dissolving a partnership, declaring he had no interest in a specific property, ordering him to pay $410,984.61 to the respondent, and appointing the respondent as Receiver.

The appellant had a long history of non-compliance with multiple court orders, leading to an uncontested hearing.

The Court of Appeal found no error in the lower court's order, noting it flowed naturally from the appellant's prior non-compliance, and dismissed the appeal.

The appellants commenced an action in Ontario alleging mismanagement of their investment accounts by their advisor and vicarious liability of the brokerage firm.

The brokerage firm successfully moved to stay the action based on a forum selection clause in the client account agreements requiring disputes to be litigated in British Columbia.

The Court of Appeal dismissed the appeal, finding the appellants failed to show strong cause to depart from the forum selection clause, as they were sophisticated investors who had the opportunity to read the agreements, and Ontario law could be proven in British Columbia courts.

The appellant appealed a trial judgment ordering it to repay approximately $2.3 million in loans to the deceased's estate.

On appeal, the appellant argued for the first time that the action was statute-barred under s. 38(3) of the Trustee Act, and that the trial judge erred in finding the limitation period was restarted by its acknowledgment of the debt.

The Court of Appeal dismissed the appeal, refusing to entertain the new Trustee Act argument and finding no palpable and overriding error in the trial judge's conclusion that the appellant's correspondence and partial payments restarted the limitation period.

The estate trustee sought partition and sale of residential property, alleging that the deceased's 7/13 interest remained an estate asset because a 2002 transfer deed to the respondent was invalid.

After a mini-trial on ownership, the court found the moving party failed to prove incapacity despite evidence of early-stage Alzheimer's disease, and accepted that the deceased understood the transfer and intended to gift her interest.

The court also held that non-registration of the transfer deed did not invalidate the gift as against the donor or her estate once the executed deed had been delivered to counsel for registration.

The application for partition was dismissed because the respondent owned the property outright at the deceased's death.

The appellant law firm appealed a decision upholding an Assessment Officer's assessment of legal fees.

The Assessment Officer discounted the time of two senior lawyers because their dockets were not served in compliance with the Evidence Act and the lawyers did not attend the hearing, depriving the client of the opportunity to cross-examine them.

The Divisional Court dismissed the appeal, finding no error in the Assessment Officer's decision or the reviewing judge's consideration.

The appellant objected to the involvement of the respondent's counsel, alleging a conflict of interest, and sought to have counsel removed.

The Divisional Court declined to make the order, noting that the objection was raised late, the lower court had already found no conflict, the quantum in issue was very small, and requiring the respondent to retain new counsel would cause undue delay and expense.

The respondents obtained an Anton Piller order and subsequent orders requiring the appellant to allow access to his premises to re-image computer hard drives.

The motion judge found the appellant in contempt for failing to comply with these orders and struck his statements of defence for failing to pay costs.

The Court of Appeal allowed the appeal, finding that the motion judge failed to properly apply the three-pronged test for civil contempt, including the requirement for clear and unequivocal orders and proof beyond a reasonable doubt.

The Court also set aside the order striking the defences, holding that the motion judge improperly reversed the onus and failed to give the appellant an opportunity to cure his default.