Jason A. Schmidt

This is an estate administration matter concerning the distribution of proceeds from the sale of a property held in the estate of Waltraud Tyll.

The applicant, Norbert Tyll, sought payment to himself and his brother Ruediger of their one-third interests in the net proceeds of sale of the family home at 840 Shadrach Drive in Newmarket.

The respondent, Wolfgang Tyll, opposed the payments.

The court determined that Norbert and Ruediger were entitled to receive their interests pursuant to section 36 of the Substitute Decisions Act, as the property had been disposed of by Wolfgang while acting as attorney for property during Waltraud's incapacity.

The court granted the requested payments, subject to adjustments for costs and prior withdrawals from the estate.

The applicant moved to set aside an order that removed him as estate trustee and appointed an Estate Trustee During Litigation (ETDL), arguing he lacked notice of the underlying contempt motion.

The court found the applicant had proper notice through his former counsel but chose not to attend.

The court further held that even if notice was improper, the appointment of an ETDL was necessary given the adversarial relationship between the co-trustees and the applicant's improper administration of the estate.

The motion was dismissed with costs awarded to the respondent.

The respondent Wolfgang Tyll brought a motion to remove Norbert Tyll as Estate Trustee for the Estate of Waltraud Tyll and as co-Estate Trustee for the Estate of Eric Tyll, and to appoint Alison Lester as Estate Trustee During Litigation for both estates.

The motion also sought a finding of contempt against Norbert Tyll for non-compliance with previous court orders.

The court found that Norbert Tyll failed to comply with prior orders, raising serious concerns about the administration of the estates.

The court granted the removal of Norbert Tyll and the appointment of Alison Lester as Estate Trustee During Litigation but held the contempt motion in abeyance, allowing for potential resolution through the new trustee's actions.

This appeal concerned the interpretation and breach of a "Buyback Provision" (BBP) in an agreement for the transfer of property.

The appellant, Mr. Quinn, argued that the BBP was an option requiring strict compliance, which the respondents, Ms. Jones and Mr. Jones, failed to meet.

The Court of Appeal characterized the BBP as an option but found that Mr. Quinn's agent acted in bad faith by obstructing the respondents' attempts to exercise the option.

The appeal was dismissed, upholding the lower court's order for specific performance of the buyback, with a minor clarification regarding the return of items.

This motion concerned a dispute over a property where the applicant, the owner, sought an order for the respondent, a commercial tenant who also resided there, to vacate the premises and leave to commence a new application for damages.

The applicant argued the respondent was a trespasser due to a terminated lease and property damage.

The respondent argued the applicant's actions caused the damage and that the proper procedure for eviction under the Commercial Tenancies Act was not followed.

The court applied the three-part test for an injunction from RJR-MacDonald Inc., finding a serious issue but no irreparable harm if the respondent was not removed.

The court denied the request for the respondent to vacate and the leave to commence a new application, noting that the issues were already covered in existing consolidated applications.

However, the court ordered a plan for the applicant to access the property for necessary repairs, with the respondent and her son absent during work hours.

Costs were not awarded due to mixed success and poor party conduct.

This costs endorsement followed an application heard on November 25, 2019.

Counsel for both parties advised the court that they had reached an agreement regarding costs, stipulating that each party would bear their own costs of the Application.

The court issued an order reflecting this agreement.

The applicant sought a declaration that he held 100% interest in the matrimonial home by right of survivorship after his wife's death, arguing that her lawyer's failure to register a joint tenancy severance before her death rendered the severance ineffective.

The wife had instructed her lawyer to prepare a new will leaving her estate to her adult children and to sever the joint tenancy.

The lawyer prepared the necessary documents, including an Acknowledgment and Direction to sever, which the wife signed.

However, due to an oversight, the severance was not registered until after her death.

The court dismissed the application, declaring that the applicant and the wife's estate each held a 50% interest as tenants in common.

The court found that the joint tenancy was effectively severed when the wife signed the transfer documents and gave immediate, unconditional instructions for registration, as delivery, not registration, determines severance.

The court criticized the lawyer's improper registration of the "zombie" deed after death using false statements, noting that a court application for a vesting order was the correct procedure.

The Plaintiffs moved for answers to undertakings and refusals, leave to amend their Statement of Claim, and a timetable.

The Defendants cross-moved for answers to refusals, access to the Plaintiffs' former solicitor's file, and leave to examine the solicitor, arguing waiver of solicitor-client privilege.

The court granted the Plaintiffs' request to amend their Statement of Claim and ordered various undertakings and refusals to be answered by both parties.

However, the court denied the Defendants' request for the solicitor's entire file and examination, finding that privilege was waived only for the specific legal letter disclosed, not the underlying advice or file.

The court also addressed costs for an aborted discovery and set a timetable for continued discoveries.

The appellant appealed the dismissal of a claim for adverse possession against the respondent property owner.

The appellant argued that the application judge erred by departing from agreed facts in concluding that adverse possession had not been established, particularly regarding whether the respondent had been excluded from the disputed property.

The Court of Appeal upheld the dismissal, finding that the application judge's findings were fully supported by the agreed facts, affidavits, and cross-examination evidence.

The court distinguished between exclusion of uninvited persons and exclusion from the owner's intended use of the property.