James J. Dunphy

Following the dismissal of the applicants' application for a writ of possession, the self-represented respondent sought costs of $15,000 for 150 hours of his time, plus disbursements, and $50,000 in damages.

The applicants argued costs should be deferred to a fresh proceeding they had commenced.

The court awarded the respondent $2,700 in costs, finding he was entitled to a moderate allowance for time spent performing work ordinarily done by a lawyer, but reduced his claimed hours to 25.

The claim for damages was dismissed as it was not properly before the court.

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.

Estate trustees brought an application seeking leave to issue a writ of possession of a property forming part of the deceased’s estate, vacant possession, occupation rent, and damages against the surviving spouse who remained in the home.

The respondent asserted that the property was a matrimonial home and that he had a beneficial interest and possessory rights.

The court held that a writ of possession cannot issue without a prior order granting exclusive possession.

Because the parties were still spouses at the time of death and the property may constitute a matrimonial home, issues of title and possession must be determined under the Family Law Act before such remedies can be granted.

The court therefore dismissed the application, including the claims for occupation rent, damages, and vacant possession.

The court considered a motion by the Applicants, estate trustees under a will, seeking to revoke a Certificate of Appointment of Estate Trustee Without a Will granted to the Respondent, Denise Mayers, and for various injunctive and preservation orders.

The court found that Denise had fraudulently obtained the certificate despite knowing of the existence of a will, and granted most of the relief sought, including a Mareva injunction, a certificate of pending litigation over certain property, and a preservation order.

The court also awarded substantial indemnity costs against Denise due to her conduct.

The appellants, Dorinda Nana Afriyie and Adusei Kwame, appealed the dismissal of their motion to set aside a default judgment and writ of possession in a mortgage action brought by Rume Ezomo.

The Court of Appeal found no error in the motion judge’s application of the criteria for setting aside a default judgment, as set out in Mountain View Farms Ltd. v. McQueen.

The court held that the motion judge properly considered the relevant factors, including promptness, explanation for default, arguable defence, prejudice, and the integrity of the administration of justice.

The appeal was dismissed, and costs were awarded to the respondent.

The court dismissed two actions by will beneficiaries against the drafting lawyer for negligence, holding that the claims were statute-barred by the 15-year ultimate limitation period in section 15(2) of the Limitations Act, 2002.

The court found that the limitation period began to run from the date of the negligent drafting, not the testator’s death, and that no statutory or common law exception applied.

The court also addressed the application of the Trustee Act and concluded that the two-year limitation period for estate claims did not revive or extend the beneficiaries’ claims.

The plaintiffs, GS International Holdings Ltd. and Yin Wu, brought a $5 million action for contractual debt, business defamation, and intentional interference with economic relations against Smart Vision Direct Inc., Galaxy Security Corporation, and Li Fang Chen.

The defendants counterclaimed for $30 million, alleging breach of fiduciary duties and contractual breaches by the plaintiffs and other parties.

The court found Annie Chen (Li Fang Chen) liable for contractual debt ($122,000 to GS International, $30,000 to Gabriel Wu/Yin Wu) and for intentional interference with economic relations ($40,000 to GS International) and defamation ($2,000 to Gabriel Wu).

The court dismissed the counterclaim, finding no breach of fiduciary duty or restrictive covenant by the defendants to counterclaim, largely due to the vague and contradictory nature of the post-separation business agreement and insufficient evidence of damages.

Following a trial in an estates matter where the applicants successfully established that a property was held in resulting trust for the deceased's estate, the applicants sought costs.

The court found no public policy considerations to deviate from the general civil litigation costs regime.

The respondents were ordered to pay the applicants' costs on a partial indemnity basis, fixed at $160,000 all-inclusive.

The applicants sought a declaration that a residential property transferred by their late mother/grandmother to three of her children was held in trust for the benefit of other family members.

The respondents claimed the transfer was a gift.

The court found that the applicants' claim for an oral inter vivos trust failed because it violated the writing requirements of the Statute of Frauds.

However, the court held that the respondents failed to rebut the presumption of resulting trust arising from the gratuitous transfer.

Consequently, the property was declared to be held in resulting trust for the deceased's estate.

Claims for partition and sale and for passing of accounts were dismissed.

The defendants Tarun Channa and Ashok Dhillon brought a motion to compel the plaintiffs (trustees of the Estate of William Buik) to provide particulars for their Statement of Claim.

The plaintiffs' claim alleged violations of the Fraudulent Conveyances Act and Assignments and Preferences Act, breach of constructive trust, and unjust enrichment, based on documents provided by the moving defendants during examinations in aid of execution.

The court, applying Rule 25.06(8) regarding fraud allegations, found that while the plaintiffs were not required to provide particulars for damages, they must provide particulars for the "impugned transactions" (dates, amounts, parties) to identify the specific fraudulent or improper transfers, even though the source documents were largely within the defendants' knowledge.

The motion was partially granted, and a timetable for further litigation steps was set.

The moving party brought motions for leave to appeal an order dated July 21, 2021.

The Divisional Court dismissed the motions for leave to appeal.

Costs of both motions were awarded to the responding parties in the fixed amount of $7,500 all inclusive.

The moving party, claiming to be the common-law spouse of the deceased, sought the appointment of an Estate Trustee During Litigation (ETDL), arguing the current estate trustee was in a conflict of interest by opposing her claims.

The estate trustee brought a cross-motion to evict the moving party from the deceased's property and to sell it, citing the estate's financial deficit and required repairs.

The court dismissed the motion for an ETDL, finding the estate trustee's opposition to a creditor's claim did not require a neutral trustee.

The court granted the cross-motion, ordering the moving party to vacate the property and authorizing its sale, noting the moving party had suitable alternative accommodation and her claims against the estate would not be prejudiced.

The plaintiffs and defendants, former business partners in the security surveillance equipment industry, brought competing motions for interlocutory injunctive relief following a bitter separation.

The plaintiffs sought to enjoin the defendants from using a disputed trademark, accessing the plaintiffs' computer systems, and making defamatory statements.

The defendants cross-moved to enjoin the plaintiffs from competing and soliciting customers.

The court dismissed the trademark injunction, finding damages were an adequate remedy, but granted the injunctions regarding computer access, website redirection, and defamation.

The defendants' cross-motion was dismissed as premature and lacking evidence of irreparable harm.