Jake Palace

The defendants, a real estate agent and his brokerage, brought a motion under r. 21.01(1)(a) of the Rules of Civil Procedure to dismiss the plaintiff estate trustee's action as statute-barred under s. 38(3) of the Trustee Act or s. 4 of the Limitations Act, 2002.

The action alleged that the defendants conspired to purchase property from a cognitively impaired deceased at below fair market value.

The court found the claim was statute-barred under the Trustee Act's strict two-year period and that fraudulent concealment could not toll the limitation because no concealment occurred after the deceased's death.

However, the court held that the limitation period was suspended under s. 7 of the Limitations Act, 2002 due to the deceased's alleged incapacity, and dismissed the motion.

This costs decision follows the court's substantive orders of September 23, 2025 (2025 ONSC 4703).

The applicants sought $65,000 in costs based on a legal bill of $115,110.

Steven Jackson and 2131376 Ontario Ltd. sought $58,407 based on a legal bill of $93,185.

Peter Jackson claimed $21,719 based on a legal bill of $33,014.

The court found that the applicants' allegations of domestic abuse and misappropriation, which failed to be proven, escalated the litigation.

The court awarded costs to Peter Jackson in the amount of $21,719.44 on a partial indemnity scale, payable by the applicants.

No costs were awarded as between the applicants and Steven Jackson and 2131376 Ontario Ltd.

This case arose from a family dispute following a corporate restructuring in September 2020 involving two patio furnishings businesses operated by spouses Kimberley and Steven Jackson.

The applicants sought to invalidate the transfer of nine shares in Distinctly Patio Inc. (DPI) to their son Peter, claiming the transfer was funded through an unauthorized bonus paid by DPI to Peter.

The applicants also sought an accounting for profits allegedly earned by 2131376 Ontario Ltd. (operating as Think Patio) in violation of a non-competition clause in the DPI shareholders' agreement.

The respondents relied on a two-year limitation period defense.

The court found that while Peter became a shareholder despite not signing the shareholders' agreement, the applicants' claims based on the bonus and share transfer were statute-barred.

The court dismissed the constructive trust claim on the merits, finding insufficient evidence of misappropriation.

However, the court found that Steven and 2131376 likely breached the non-competition clause and ordered an accounting reference.

The court also granted Peter's counterapplication for oppression remedies, ordering DPI to redeem his shares for $17,167.42.

The plaintiffs brought a motion to amend their statement of claim to reflect the appointment of a litigation guardian and for a finding of contempt against the defendants for failing to attend discoveries.

The defendants sought an adjournment of the motion pending the hearing of a cross-motion to stay the action due to the plaintiffs' alleged lack of capacity and a pending guardianship application.

The court granted the adjournment and stayed the motion to amend, finding that the genuine issues concerning the plaintiffs' capacity and the suitability of the proposed litigation guardian needed to be determined first.

The plaintiffs withdrew their contempt request.