Ian Barclay McBride

Costs endorsement following a will challenge and a dependant support claim.

The applicant was unsuccessful in challenging the 2018 Wills but partially successful in his dependency claim.

The court applied the McGrath framework to determine if public policy considerations warranted costs being paid from the estate.

The court found public policy applied to the dependency claim but not the will challenge.

Costs were awarded on a partial indemnity basis, with the successful respondent on the will challenge receiving $200,000 and the applicant receiving $125,000 for the dependency claim.

After a 40% estate contribution to the applicant's costs and a set-off, the applicant was ordered to pay a net amount of $125,000 to the respondent.

The plaintiffs moved for a status hearing to extend the deadline to set their complex construction action down for trial.

The defendant DeMarco Construction opposed, arguing the delay was inexcusable and caused prejudice due to the death of its primary witness.

The court found the plaintiffs provided an acceptable explanation for the delay, citing health issues and difficulties scheduling mediation.

The court also held that the prejudice from the witness's death was not attributable to the plaintiffs' delay and was attenuated by the availability of discovery transcripts and documentary evidence.

The motion to extend the deadline was granted.

The court considered Jack Shapiro’s application for dependant support and a declaration of trust over a condominium following the death of his wife, Carol-Sue Shapiro.

The court found that Jack was a dependant under the Succession Law Reform Act and that Carol-Sue had not made adequate provision for his support in her will.

The court ordered that title to the matrimonial condominium be transferred to Jack, in addition to the $250,000 bequest, balancing Jack’s needs and Carol-Sue’s testamentary intentions to leave the majority of her estate to her son, Michael Shapiro.

This case concerns an application for a Certificate of Appointment of Estate Trustee, which was challenged by the deceased's husband and daughter on grounds of undue influence and testamentary fraud.

The objectors alleged that the deceased's son and his wife fraudulently influenced the deceased to disinherit her daughter and significantly reduce her husband's inheritance by instilling false beliefs about the daughter's husband and the husband's financial well-being.

The court found no evidence that the son and his wife perpetrated or encouraged these alleged falsehoods.

The deceased's testamentary changes were determined to be her own decisions, made gradually over time, based on her long-standing concerns about protecting the family's wealth from her son-in-law, and after receiving independent professional advice.

The court dismissed the objections, declared the wills valid, and granted the application for the Certificate of Appointment.

The defendants brought a motion to disqualify the plaintiffs' counsel and their law firm on the basis of a conflict of interest.

The defendant, Marc Lewis, had previously retained the same law firm for an employment matter with a former employer.

The court applied the MacDonald Estate test and found that the previous retainer was not sufficiently related to the current malfeasance action, and no relevant confidential information was imparted.

Furthermore, the law firm had implemented an ethical wall.

The motion to disqualify counsel was dismissed.

The applicants sought an order directing an assessment of legal accounts paid to Gowling WLG (Canada) LLP for work performed for Carolyn Brown.

Gowlings consented to the assessment but raised concerns about solicitor-client privilege over portions of its file, particularly for the period before formal counsel appointment, questioning if the applicants (Carolyn's litigation guardians) could waive this privilege.

The court ruled that the guardians, acting as guardians of property, had a legitimate purpose to obtain disclosure to ensure reasonable billing, thereby waiving the solicitor-client privilege for the assessment.

The court emphasized that while a person lacking capacity retains dignity and privacy, disclosure is permissible when necessary to protect their interests, and the assessment officer will determine the appropriate scope of production.

This supplementary costs endorsement addresses a request to reconsider a previous costs decision.

The court had initially ordered Gordon Brown to pay Christina Rudin-Brown and Jeanne Brown $150,000 in costs, which was a reduction from $200,000 due to a $50,000 payment their lawyers received from Carolyn Emily Brown's assets.

Christina Rudin-Brown and Jeanne Brown sought reconsideration, arguing the deduction effectively shifted their contribution to Gordon Brown's costs.

The court, exercising its jurisdiction to reconsider, found that while accounting for the $50,000 payment was appropriate, deducting the entire amount penalized the applicants.

To ensure fairness and avoid over-compensation, the court adjusted the deduction by 25%, reducing it to $37,500.

Consequently, Gordon Brown was ordered to pay Christina Rudin-Brown and Jeanne Brown $162,500 in substantial indemnity costs.

The court also provided direction on how these costs should be paid.

Following a trial where the court invalidated powers of attorney due to incapacity and undue influence, the successful applicants sought their costs.

The court found that the unsuccessful respondent's conduct, which included manipulating the incapable person and unnecessarily lengthening the litigation, warranted a costs award on a substantial indemnity scale.

The court ordered the respondent to pay $150,000 in costs to the applicants, rather than having the costs paid from the incapable person's assets.

The objectors, the widower and daughter of the deceased, brought a motion for directions under Rule 75.06 challenging the validity of the deceased's 2018 wills on grounds of lack of testamentary capacity and undue influence by the applicant son.

The court found the objectors met the minimal evidentiary threshold to call the wills into question.

The court ordered broad documentary discovery and the examination of the drafting lawyer, and appointed an independent estate trustee during litigation on an interim basis to ensure fairness and preserve estate assets.

The applicants sought to invalidate 2016 powers of attorney executed by their 91-year-old mother/sister-in-law in favour of her son, who lived with her.

The son brought a competing application to validate the 2016 powers of attorney and be appointed guardian.

The court found the 2016 powers of attorney were executed under suspicious circumstances and the son failed to prove the mother had the requisite capacity to execute them.

The court also found the son exercised undue influence over the mother.

The 2016 powers of attorney were declared invalid, the 2009 power of attorney for property was declared operative, and the applicants were appointed joint guardians of the person.

The defendants, EBC Inc. and Guarantee Company of North America, brought a motion for security for costs against the plaintiff, Bolton Mechanical Inc., in a "bond action" that was substantively duplicative of a prior "lien action." In the lien action, security for costs had already been ordered against Bolton due to insufficient assets.

The court dismissed the current motion, finding that the issues added by the bond action were insignificant and that the defendants' delay in bringing the motion was tactical, amounting to a collateral attack on the prior order.

The defendant general contractor brought a motion for security for costs against the plaintiff subcontractor in a construction lien action.

The defendant first sought leave under s. 67(2) of the Construction Lien Act.

The court granted leave, finding it necessary to achieve procedural fairness as the defendant had posted security to vacate the lien.

The court found good reason to believe the corporate plaintiff had insufficient assets in Ontario based on admissions that it was no longer performing mechanical work.

The plaintiff failed to prove sufficient assets or a good chance of success on the merits.

The court ordered the plaintiff to post $50,000 in security for costs in installments.

The defendants, JP Gravel Construction Inc. and Jean-Pierre Gravel, brought a motion seeking leave to discharge a construction lien registered by the plaintiff, 9585800 Canada Inc. o/a Earth Movers, and to dismiss the lien action.

The plaintiff had initially registered a "First Lien" with a typographical error in the timeframe of services, discharged it, and immediately registered a "Second Lien" with the corrected timeframe.

The defendants argued the second lien was invalid under s. 48 of the Construction Lien Act due to the discharge of the first, and was exaggerated.

The court granted leave for the motion but dismissed the defendants' request to discharge the second lien, finding the first lien to be a nullity due to the incorrect timeframe, thus making s. 48 inapplicable to the valid second lien.

Costs were awarded to the plaintiff.

The appellant, a numbered company controlled by Ali Karimi, appealed a motion judge's decision to stay civil proceedings for abuse of process.

The civil actions sought damages for alleged theft against the respondents.

The respondents had previously been victims in a 2011 criminal trial where Karimi was convicted of extortion and criminal harassment based on false theft allegations against them.

The motion judge found that permitting the civil actions to proceed would constitute an abuse of process, as it would allow Karimi to continue the persecution for which he had been criminally convicted.

The Court of Appeal upheld the stay, finding that the motion judge properly applied the abuse of process doctrine and that it was open to conclude the jury implicitly found no theft had occurred.

Following the dismissal of two identical actions via summary judgment, the court determined the scale and quantum of costs.

The court found that substantial indemnity costs were appropriate, balancing the principle of indemnity with reasonableness and proportionality.

The plaintiff, along with an individual personally liable pursuant to a prior consent order, was ordered to pay $25,000 in costs to each defendant.

The plaintiff corporation registered a construction lien for $184,493.87 against the defendants' property following a home renovation dispute.

The plaintiff subsequently abandoned the action, failed to post ordered security for costs, and its sole owner filed a consumer proposal.

The defendants brought a motion to dismiss the action and sought costs personally against the plaintiff's owner and its lawyer.

The court dismissed the action and awarded substantial indemnity costs against the plaintiff and its owner jointly and severally, finding the owner allowed the action to drift rather than discontinuing it.

The court declined to order costs against the plaintiff's lawyer, finding no evidence of bad faith, malice, or negligence in registering the lien.

Following an application for directions regarding a holograph codicil, the estate trustee sought full indemnity costs of $72,441.81 from the unsuccessful respondent beneficiary.

The respondent argued costs should be paid by the estate due to ambiguities caused by the testator.

The court applied the modern approach to estate litigation costs, finding the respondent's position unreasonable given her legal background.

However, the court reduced the claimed amount, ordering the respondent to pay $20,000 and the estate to pay $15,000 to the estate trustee.

The appellant employer appealed a summary judgment dismissing its claim against a former employee for alleged theft.

The motion judge had found no admissible evidence of theft and noted that the appellant's owner had been convicted of attempted extortion against the respondent.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's treatment of the evidence or his reliance on the criminal trial findings.

The Estate Trustee sought court directions regarding the validity of three potential holograph codicils and the disposition of life insurance proceeds from the estate of Franklin Walter Briggs.

The court found two documents (July 29, 2013, and August 8, 2014) to be valid holograph codicils, but a third document, the "Notes Document" was deemed a planning document and not a valid testamentary instrument due to lack of signature, date, and formal language.

The court also ruled that the July 29, 2013 document, despite being a valid codicil, did not constitute a valid declaration under the Insurance Act to change the beneficiary of life insurance policies, as it failed to specifically identify the insurance contract or fund.

Consequently, the life insurance proceeds belonged to the estate, not a specific beneficiary.

The defendant was entirely successful on a motion for summary judgment dismissing the plaintiff's claim of theft.

The principal of the corporate plaintiff had previously been convicted of extortion and harassment against the defendant but persisted in the civil claim.

The court awarded the defendant costs on a full indemnity basis due to the plaintiff's reprehensible conduct, fixing the total costs at $57,748.20, payable jointly and severally by the corporate plaintiff and its principal.