Jack R. Armstrong

The applicant sought to be appointed as Estate Trustee pursuant to the deceased's 2018 will, which left virtually the entire estate to her and excluded the deceased's four children.

The children contested the will's validity, alleging undue influence and cognitive impairment due to brain cancer.

The court declined to appoint the applicant as Estate Trustee and ordered the parties to select a mutually agreeable trustee to manage the estate pending the outcome of the litigation.

This decision addresses the issue of costs following a five-day trial concerning defaulted mortgages and construction costs.

The plaintiffs, Barrie Leasing Services Inc. and James Shirley, were found to be the successful parties, having been awarded judgment for outstanding mortgage and construction costs.

The court determined that the plaintiffs were entitled to partial indemnity costs, rejecting their claim for substantial indemnity costs and the defendants' argument that their Rule 49 offer should apply.

The court found that the trial was necessary to resolve live issues, including the distribution of funds held in trust.

The plaintiffs advanced funds secured by three mortgages on a property owned by the defendant, which went into default.

The plaintiffs also advanced approximately $400,000 in construction costs to build a cottage and boathouse to enhance the property's value for sale.

The property sold for $1,250,000.

The court determined the outstanding mortgage balances and found that while the construction loans were not secured by the third mortgage, there was an implied agreement to pay interest at 5% under the Interest Act.

The court imposed an equitable mortgage and constructive trust over the sale proceeds to secure repayment of the construction costs, finding the defendants were unjustly enriched.

The applicants sought an injunction to stay power of sale proceedings, a declaration that a Notice of Sale was invalid, and the release of trust funds to redeem a mortgage.

The respondent opposed, arguing the application should be stayed due to unpaid costs and that the trust funds were subject to a prior court order.

The court declined to stay the application for costs.

It ruled that the trust funds must remain in trust pending the judgment in a separate consolidated action concerning other mortgages.

The court found the respondent's Notice of Sale invalid because it was issued in breach of a forbearance agreement, but clarified that the respondent was free to issue a new, compliant notice.

The request to stay the power of sale proceedings was otherwise dismissed.

Following a successful motion for summary judgment and possession of land subject to a defaulted mortgage, the plaintiff sought substantial indemnity costs of $32,143.58.

The defendants argued for partial indemnity costs, noting a forbearance agreement was in place and there were live issues regarding the amounts claimed.

The court found the defendants' conduct did not warrant substantial indemnity costs and awarded partial indemnity costs.

Costs were fixed at $20,544.34, inclusive of fees, disbursements, and HST.

The appellant was severely burned after tripping over cinder blocks and falling into a fire pit at a party hosted by tenants on a residential property.

The trial judge found the tenants and the appellant each 50% at fault but dismissed the action against the landlord, finding he owed no duty of care because the rental agreement relieved him of maintenance obligations.

The Court of Appeal allowed the appeal, holding that the landlord admitted to being an occupier in his pleadings and that the Landlord and Tenant Act imposes a non-waivable statutory duty on residential landlords to maintain the premises.

The landlord was found jointly and severally liable with the tenants for 50% of the appellant's damages.