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 appellant appealed the Registrar's proposal to refuse his registration as a real estate salesperson under the Real Estate and Business Brokers Act, 2002.

The parties reached a settlement and requested a consent order.

The Licence Appeal Tribunal ordered that the appellant's registration be accepted subject to numerous conditions, including quarterly reporting on trades and consumer proposal payments, and successful completion of compliance courses.

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 plaintiffs were beneficial owners of a property held in trust by the defendant Bertrand, who was the registered owner.

Bertrand sold the property to 670 without the plaintiffs' consent and signed a false affidavit to clear executions against his name.

The trial judge found the transfer was a 'fraudulent instrument' under the Land Titles Act, declared it void, and ordered rectification of the register.

On appeal, the Divisional Court held that the trial judge erred in law.

Bertrand was not a 'fictitious person' and did not forge the transfer, as he was the true registered owner with legal authority to convey the property.

Furthermore, 670 was a bona fide purchaser for value without notice, protected by s. 62(2) of the Act, which states that describing an owner as a trustee does not constitute notice of a trust.

The appeals by 670 and the Director of Titles were allowed, confirming 670's ownership, while Bertrand's appeal against the findings of fact was dismissed.

The matter was remitted to the trial court to assess damages against Bertrand.

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.

Following a trial where the plaintiff was awarded over $1.8 million in damages for environmental contamination against one defendant but was unsuccessful against another, the court determined the costs payable by the unsuccessful defendant.

The court rejected the plaintiff's request for substantial indemnity costs, finding the defendant's conduct was not egregious.

The court applied a partial indemnity scale, reducing the fees by 10% to account for the successful co-defendant's involvement, and by a further 15% to reflect divided success on the issues and limited financial success compared to the amount claimed.

Total costs of $214,890.44 were awarded to the plaintiff.

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.

The plaintiff property owner sued the adjacent dry cleaning business and its principal for environmental contamination caused by the migration of dry cleaning solvents (PCE/TCE) onto his lands.

The court dismissed claims in trespass, strict liability, and negligence, but found the corporate defendant liable in private nuisance and under section 99 of the Environmental Protection Act.

The individual defendant was not found liable as he did not own or control the pollutant at the time of the spills and his subsequent inaction did not cause the plaintiff's damages.

The court awarded the plaintiff $1,632,500 for remediation costs and $201,726.71 for engineering expenses.

The plaintiff tenant sought a declaration and specific performance of an agreement to purchase leased commercial lands from the defendant landlord following a barn collapse and insurance settlement.

The court held that the landlord's long-time property manager had actual or apparent authority to bind the corporation, that an enforceable agreement existed for the sale of the severable six-acre parcel, and that any deficiency under the Statute of Frauds was overcome by part performance.

The court further found the property was sufficiently unique and damages inadequate, particularly given the plaintiff's substantial improvements and the defendant's attempt to renegotiate after receiving the insurance cheque.

Specific performance was granted, the approval authority was directed to accept the severance application without the owner's consent, and the defendant's counterclaim was dismissed.

The Appellant appealed a proposal by the Registrar to revoke his registration as a real estate salesperson.

The Registrar cited the Appellant's history of bankruptcy, outstanding judgments, multiple disciplinary findings by RECO for unethical conduct, criminal convictions for violating the Act, and providing false information on renewal applications.

The Tribunal found the Appellant's conduct demonstrated a shocking lack of integrity and financial responsibility.

Applying the Tulloch factors, the Tribunal concluded that conditional registration would not adequately protect the public and directed the Registrar to carry out the proposal to revoke the registration.