Jeremy R. Rubenstein

Following a successful motion for the appointment of an Estate Trustee During Litigation, the applicant residual beneficiary sought costs on a substantial indemnity basis personally against the named estate trustee.

The estate trustee had failed to apply for a certificate of appointment, failed to provide information to beneficiaries, failed to file responding materials on the motion, and failed to attend the hearing.

The court awarded substantial indemnity costs of $20,708.74 payable personally by the estate trustee, finding that his conduct as a fiduciary warranted an elevated cost order and that an award from the estate would unfairly burden the beneficiaries.

The respondent's informal, late, and analytically deficient cost submissions were rejected entirely.

The plaintiff, Khris Paquette, sought an interim order for occupancy of his deceased mother's property or, alternatively, interim support from her estate.

The deceased's will left no provisions for the plaintiff, naming her brother as the sole beneficiary and estate trustee.

The court found that while the deceased was not providing direct support immediately before her death, a moral obligation existed for the estate to provide support due to the plaintiff's disabilities and limited income.

The request for interim occupancy was denied due to the plaintiff's history of destructive behavior and inability to live alone, and the potential for dissipating the estate's main asset.

However, the court granted interim financial support of $200 per month, finding a demonstrated need despite the plaintiff's lack of specific evidence on the amount sought.

The defendants brought a motion for costs thrown away and security for costs after the plaintiff failed to attend a unilaterally scheduled mediation.

The plaintiff had been deported from Canada and had no assets in Ontario.

The court found the plaintiff's counsel acted disrespectfully by concealing the plaintiff's unavailability for mediation, awarding costs thrown away.

The court also ordered the plaintiff to post security for costs, finding his evidence of impecuniosity unreliable and his underlying claims for negligent misrepresentation and breach of insurance contract almost certain to fail.

The plaintiff, Moira Caron, sued for damages following a slip and fall in her workplace kitchenette.

The court dismissed the action, finding that the defendants, as occupiers, met their positive duty of care under the Occupiers' Liability Act by maintaining a reasonable system of cleaning, inspection, and call service.

The court also found that the plaintiff failed to prove that her ongoing complaints and inability to return to work after January 2011 were caused by the slip and fall incident, attributing them instead to a pre-existing anxiety disorder.

Two appeals from a trial judgment concerning liability for environmental remediation of real property contaminated by dry cleaning solvents.

The trial judge found Fraser Hillary's Limited liable in nuisance and under section 99 of the Environmental Protection Act, awarding over $1.8 million in damages for remediation.

The action against David Hillary was dismissed.

Fraser appealed on grounds that the trial judge erred in finding it liable in nuisance and under the EPA.

The plaintiff appealed on grounds that the trial judge erred in failing to find negligence, failing to find the individual defendant liable in nuisance or negligence, and in assessing damages.

The appellate court dismissed both appeals, upholding the trial judgment.

A motion by Ecojustice for leave to intervene as a friend of the court in an appeal concerning environmental contamination liability.

The underlying judgment held the defendant corporation liable in nuisance and under the Environmental Protection Act for approximately $1.8 million in damages.

Ecojustice sought to provide submissions on environmental law implications and the retrospective application of statutory provisions.

The motion judge dismissed the intervention motion, finding that Ecojustice's proposed submissions would not materially assist the court and would cause injustice to the respondents by requiring them to address new arguments without adequate notice.

Following a nine-day trial where the plaintiffs successfully obtained a declaration that a property transfer was a fraudulent instrument and vested a 72.97% interest in their names, the plaintiffs sought costs.

The plaintiffs had made an offer to settle that they matched or exceeded at trial.

The court rejected the defendants' arguments to depart from the general rule regarding offers to settle, finding the defendants' conduct reprehensible and negligent.

The court awarded the plaintiffs partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, payable jointly and severally by the defendants.

The plaintiffs, beneficial owners of a property, sought a declaration of ownership and a vesting order after the defendant bare trustee sold the property without their consent.

The trustee, who was subject to personal executions, signed a false affidavit stating he was not the execution debtor to complete the sale.

The court found the trustee was a 'fraudulent person' under the Land Titles Act and the transfer was a 'fraudulent instrument'.

The purchaser was not a bona fide purchaser without notice, as suspicious circumstances put him on inquiry.

The court declared the transfer void and ordered the title rectified to reflect the beneficial ownership interests.

This addendum to reasons for decision addresses a request by the defendant, Fraser Hillary’s Limited, to present supplementary submissions concerning compensation under s. 99 of the Environmental Protection Act, citing the Court of Appeal decision in McCann v. Environmental Compensation Corp. The court declined the request, affirming the principle of finality and finding that the issue did not warrant reconsideration.

The court also clarified its prior finding that applying s. 99(2) was not retroactive and questioned the applicability of McCann to the present case.