Holly V. A. Cunliffe

The court considered a motion by the plaintiffs for interim and interlocutory relief restraining the use of corporate funds by J.D.H. Holdings Limited to pay the defendants' legal and professional fees in an oppression action.

The plaintiffs also sought an accounting and repayment of such funds, or, in the alternative, a partial reimbursement to Jonshal Enterprises Inc. The court dismissed the motion, finding that the plaintiffs had not established irreparable harm or overwhelming fairness concerns to justify the relief sought, and that any damages could be addressed at trial.

The court considered a motion by the JDH Defendants for production and disclosure of documents over which the plaintiffs claimed privilege in an oppression and breach of fiduciary duty action.

The court found that the plaintiffs met their initial onus to establish litigation privilege over communications from and after December 16, 2019, and denied the defendants’ request for the court to review the 282 documents.

The court ordered both sides to produce redacted versions of privileged documents (excluding those with current litigation counsel and post-litigation communications) and to meet and confer regarding any non-privileged questions.

No costs were awarded to either side.

This decision concerns an application by Dr. Kelly Diane Riedel regarding the validity and administration of the Dmyant Sangha Family Trust and the Sangha Property Trust.

Dr. Riedel alleges that the trusts are shams, created to defeat her family law entitlements, and seeks various forms of relief including the production of legal records and the conversion of the application to an action.

The court addresses the legal standards for sham trusts, the relevance of disputed facts, and the entitlement to privileged documents.

The application to convert to an action is dismissed, and the court sets out a process for determining threshold questions regarding the validity of the trusts.

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

The applicant, as estate trustee and trust trustee, sought declarations regarding the validity of a photocopy of a will, the nature of a jointly held property, and the validity of a "pour-over" clause in the will.

The court declared the photocopy will valid and the joint tenancy property a true gift by right of survivorship.

However, the court found the pour-over clause invalid, preferring the British Columbia approach which emphasizes strict formality requirements for testamentary dispositions, leading to the residue of the estate being distributed by intestacy.

Costs were awarded to the applicant from the estate.

The applicants, disinherited daughters of the deceased, brought a motion for the appointment of a neutral professional Estate Trustee During Litigation (ETDL) to manage their father's substantial estate during a will challenge.

The named estate trustees (the deceased's second wife and business associates), who were also respondents and potential witnesses in the will challenge, sought to be appointed as ETDL themselves, arguing their unique knowledge of the deceased's business.

The court found that a neutral professional ETDL was warranted given the acrimony between the parties, the estate trustees' inevitable role as witnesses, and the significant value of the estate, dismissing the estate trustees' request to appoint themselves.

During a trial, the plaintiffs objected to the defendants questioning a witness about a lost estate intake form that was not listed in the defendants' affidavit of documents.

The court found that the defendants breached Rule 30.03(1)(c) of the Rules of Civil Procedure by failing to list the lost document and explain its absence.

However, the court allowed the questioning to proceed, noting that the document was peripheral to the main issues, mitigating measures were available to the plaintiffs, and the prejudice was minimal.

The court concluded that the failure to disclose was best addressed in costs.

The plaintiffs sought to introduce participant expert evidence from a lawyer, David Murray, regarding the standard of care applicable to the defendant lawyer in a solicitor's negligence claim.

The court, applying the Westerhof and Mohan/White Burgess criteria, ruled that while Mr. Murray was qualified, his proposed opinion on the objective standard of care was not formed as part of his ordinary participation in the events at issue and thus did not qualify as participant expert evidence under Rule 53.03.

The court declined to permit the opinion evidence.

The defendants sought security for costs from the non-resident plaintiffs, Typhoon Offshore B.V. and Typhoon Capital B.V., arguing their claim was hybrid and not solely an oppression remedy.

The court found the plaintiffs' claim to be primarily related to oppression remedies (70%) but also included other relief such as constructive trust and claims under the Fraudulent Conveyances Act and Assignments and Preferences Act.

Despite the hybrid nature of the claim and the plaintiffs being non-resident with insufficient Ontario assets, the court exercised its broad discretion.

It found that the plaintiffs had a good chance of success, particularly given existing unpaid judgments against one of the defendants, Jacob Securities Inc., and the alleged oppressive conduct.

The motion for security for costs was dismissed, as it was deemed unjust to order security against plaintiffs seeking to enforce existing judgments.

The applicant sought to set aside an arbitral award, arguing that the arbitrator's failure to conduct a conflict search with his former law firm, which had acted for the underwriters of the project and a company whose CFO was a witness, created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the challenge under Article 34 of the Model Law.

However, the court dismissed the application, holding that the connection between the arbitrator and his former firm's clients was too remote to establish a reasonable apprehension of bias, and that an arbitrator who has left a law firm does not have a duty to investigate potential conflicts with that former firm.