Henry Juroviesky

The court-appointed Administrator of an estate brought a motion to appoint an investigator to review the accounts and assets of two intertwined family estates.

The estates had been mired in years of acrimonious litigation among the sibling beneficiaries, with allegations of breached fiduciary duties and misappropriated funds.

Finding that the accounts were complex, significant information was missing, and the parties were highly dysfunctional, the court granted the motion and appointed the investigator to provide a neutral analysis.

The appellant appealed a decision dismissing a motion to appoint a new representative plaintiff and recertify a class proceeding.

The motion judge had previously decertified the action after the original representative plaintiff was found unsuitable and class counsel failed to find a replacement within the allotted 60 days.

Almost two years later, class counsel brought a motion to appoint a new representative plaintiff.

The motion judge dismissed the motion as an abuse of process, finding it amounted to relitigation and raised concerns about the lack of a costs indemnity agreement.

The Divisional Court upheld the decision, finding no palpable and overriding error in the motion judge's application of the abuse of process doctrine or his factual findings.

Following the dismissal of the plaintiff's motion for re-certification of a class action, the defendant sought costs on a substantial indemnity basis.

The plaintiff argued that no costs should be awarded as the motion passed several certification hurdles before failing on the representative plaintiff requirement.

The court rejected the plaintiff's argument, noting that partial success on hurdles does not equate to a divided result.

However, recognizing the difficult circumstances faced by plaintiff's counsel, the court exercised its discretion to award costs to the defendant on a partial indemnity basis in the fixed amount of $50,000.

The plaintiff brought a motion to re-certify a class action and appoint a new representative plaintiff, nearly two years after the court had de-certified the action and given class counsel 60 days to find a suitable replacement.

The court found that the proposed new representative plaintiff lacked an appropriate costs indemnity agreement and was implicated in spreading falsehoods among the class.

The court dismissed the motion, holding that allowing a late change of representative plaintiff under these circumstances would be fundamentally unfair to the defendant and an abuse of process.

The defendant sought costs thrown away after preparing a motion to settle the terms of a decertification order, which included a request to make the plaintiff's counsel personally liable for an unpaid costs award of $37,800.

Before the motion was heard, the plaintiff's counsel paid the outstanding costs in full, obviating the need for the motion.

The court declined to award costs thrown away to the defendant, emphasizing the judicial policy of encouraging parties to resolve disputes and reduce litigation expenses.

A case conference was held to discuss next steps in a class action that was previously certified and then decertified.

The plaintiff sought to schedule a recertification motion with a new representative plaintiff, while the defendant sought to settle the terms of the decertification order, specifically seeking to make plaintiff's counsel personally liable for a previous $37,800 costs award.

The court deferred scheduling the recertification motion until the costs issue and the terms of the decertification order are resolved at an upcoming motion.

The plaintiff in an unpaid wages class action moved to be re-appointed as the representative plaintiff, having been removed months earlier for prioritizing his personal interests over those of the class.

Class counsel had been unable to find a replacement representative plaintiff.

The court found the plaintiff remained unsuitable due to his volatile, self-focused behavior and inability to provide independent judgment.

Consequently, the motion for re-appointment was dismissed, and the defendant's cross-motion to decertify the class action was granted.

The applicant sought to enforce a July 10, 2019 order from the Supreme Court of the State of New York appointing a temporary guardian for the respondent's mother and ordering the applicant, as trustee of a spousal trust, to pay funds for her well-being and investigation of her whereabouts.

The court applied the test for recognizing foreign judgments, finding the New York court had jurisdiction and the funding order was final.

The court recognized the order regarding the funding provisions but declined to recognize the provisions granting access to medical and confidential information due to privacy concerns.

The plaintiff, Istvan Hirosik, brought a summary judgment motion seeking long-term disability benefits from Canada Life Assurance Company, along with aggravated, exemplary, and punitive damages.

The central issue was whether Hirosik's current lumbar spine disability qualified as a new claim or a recurrent disability under the policy, given his complex medical history.

The defendant argued the motion was inappropriate due to insufficient medical evidence to assess disability, causation, and credibility.

The court dismissed the motion, finding the medical issues too complex for summary judgment without a complete medical record and expert evidence, and directed the matter to proceed to trial.

This endorsement addresses costs arising from an unsuccessful and untimely motion brought by Sarah Werner to vary an order appointing a litigation guardian for her mother, Ida Rubin.

The court found Ms. Werner's proposed motion to be an obstructionist tactic, lacking merit, and brought in breach of a scheduling order.

Due to Ms. Werner's reprehensible litigation conduct, the court awarded full indemnity costs against her to the applicant and litigation guardian.

Additionally, costs were awarded to other parties (Morris Rubin and The Bank of Nova Scotia Trust Company) from the estate, with these amounts to be allocated solely to Ms. Werner's share.

Joseph Pernica, litigation guardian for Ida Rubin, sought a case conference regarding his status amidst upcoming motions.

The endorsement addresses a purported motion by Sarah Werner to vary an order appointing Pernica as litigation guardian for Ida Rubin, arguing Pernica exceeded his mandate by obtaining Ida Rubin's banking records and challenging Ida Rubin's capacity.

The court declined to schedule Ms. Werner's motion, finding she lacked standing under Rules 59.06 and 7.06(1)(b).

The court affirmed Pernica's role as litigation guardian and provided specific directions for any future motion by Ida Rubin herself to remove the litigation guardian, emphasizing the need for transparency, personal affidavit, and attendance in open court for cross-examination due to the risk of abuse in ex parte proceedings.

The court also declined to stay the case, emphasizing the need for information sharing for mediation and a mechanism for fund distribution.

The applicant, a daycare teacher, sought judicial review of decisions by the respondent children's aid society verifying an allegation of risk of sexual harm against him.

The Divisional Court found that the respondent's investigation was fundamentally flawed, superficial, and failed to follow mandatory investigative steps, such as interviewing key witnesses and examining the physical layout of the daycare.

The court quashed the respondent's decisions, finding them unreasonable, and awarded costs to the applicant.

The applicant, Annie Mayer, sought costs on a partial indemnity basis following her successful motion to appoint an Estate Trustee During Litigation (ETDL) for the Estate of Johann Rubin.

The respondent estate trustees/beneficiaries and certain non-parties opposed the motion.

The court awarded the applicant partial indemnity costs of $52,000, to be paid jointly and severally by the respondent estate trustees/beneficiaries and the non-parties (Anne Rubin, Ray Rubin, Eric Rappaport, and Sharon Slansky), within 30 days.

The court declined full indemnity costs, finding the respondents' conduct not sufficiently reprehensible, and rejected deferring costs to trial, as the applicant's success was based on the respondents' conflict of interest, not an interlocutory issue.

Arsandco Investments Limited was not ordered to pay costs.

The applicant, an estate trustee and beneficiary, moved to appoint an institutional estate trustee during litigation for her father's substantial estate.

The motion was opposed by the other estate trustees (the applicant's mother and siblings) and another sibling.

The court found that the mother, Ida Rubin, likely lacked capacity, and the other estate trustees had engaged in questionable transactions, including retroactively characterizing assets as jointly held to avoid probate fees, making large gifts from the spousal trust to themselves, and failing to provide proper disclosure or pass accounts despite repeated requests.

The court emphasized its inherent jurisdiction to supervise estates and appoint an estate trustee during litigation to ensure neutral stewardship, protect beneficiaries' interests, and maintain a level playing field, especially given the conflicts of interest and animosity among the parties.

The moving parties sought leave to appeal a decision dismissing their motion to disqualify the applicant's lawyers and seal the motion record.

The motion judge had found that the moving parties waived confidentiality by placing the purportedly confidential material in the public motion record.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's conclusion on waiver of privilege.

The court addressed costs following the dismissal of a motion by certain respondents to disqualify the applicant's counsel.

The applicant sought full indemnity costs, arguing the motion was tactical and based on unsubstantiated allegations.

The court agreed, finding the respondents' claims of confidential information misuse were disingenuous, particularly given their deliberate disclosure of the "Memo" in question.

The court also noted the tactical use of a summons to witness.

Applying section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court awarded the applicant $25,500 in full indemnity costs against the moving respondents (excluding the Office of the Children's Lawyer and Arsandco Investments Limited), emphasizing that such motions, when brought for illegitimate tactical reasons or with unsubstantiated allegations of unethical conduct, warrant enhanced costs.

The respondents brought a motion to prohibit the applicant's lawyers from acting, alleging a conflict of interest due to confidential information shared with a lawyer associated with the applicant's firm prior to the current retainer.

The court dismissed the motion, finding that the respondents had voluntarily and intentionally disclosed the purportedly confidential information in their public motion record and during cross-examination.

This disclosure was deemed a waiver of any privilege and confidentiality, thereby negating the basis for the conflict of interest claim.

The court also dismissed the request to seal the motion record.

Following the dismissal of a class action on a summary judgment motion, the successful defendant sought costs on a substantial indemnity basis due to a rejected settlement offer and unfounded allegations of fraud.

The plaintiff argued no costs should be awarded due to the defendant's conduct.

The court rejected both extreme positions, awarding costs to the defendant on a partial indemnity basis.

After adjusting the hourly rates to conform to the grid and deducting a prior costs award owed to the plaintiff, the court fixed the net costs payable by the representative plaintiff at $63,787.

The representative plaintiff brought a class action on behalf of debt collectors who were temporarily laid off when Global Credit's largest client, Capital One, terminated its collection agreement.

Following the termination, Capital One paid Global a $5.7 million settlement.

The plaintiff claimed the class members were contractually entitled to a 15 percent commission on this settlement, arguing it was compensation for post-dated cheques returned to Capital One.

On cross-motions for summary judgment, the court dismissed the action, finding that the settlement was not compensation for the post-dated cheques and that commissions were only payable if individual monthly breakeven targets were met, which did not occur.

The defendant brought a motion to set aside a default judgment obtained by the plaintiff.

The court applied the five principles from *Intact Insurance Co. v. Kisel*, considering promptness, plausible explanation for default, arguable defence, potential prejudice, and the integrity of the administration of justice.

The court found that the defendant satisfied the criteria, noting issues of sharp practice by plaintiff's counsel and an arguable defence regarding defamation and non-refundable deposits.

The motion was granted, setting aside the default judgment, and the defendant was ordered to file a statement of defence and, if applicable, a motion to challenge jurisdiction.