Ian B. McBride

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 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 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.

Investors sued a chartered accountant and his consulting corporation alleging breach of fiduciary duty and negligence after losing money in complex domestic and offshore investment structures connected to an investment club and related entities.

The court found the advisor promoted the investments, failed to disclose commissions, and reassured the investors about the legitimacy of the structure despite serious regulatory concerns and structural deficiencies in the investment scheme.

The relationship involved trust, reliance, and vulnerability sufficient to create a fiduciary duty.

The advisor breached that duty by failing to disclose conflicts, failing to warn about regulatory issues, and misrepresenting the diligence performed.

Liability was imposed for the plaintiffs’ investment in the domestic issuer but not for later investments made after regulatory warnings, which the court held the plaintiffs unreasonably failed to mitigate.