J. Figliomeni

The defendant brought a motion to enforce a settlement reached on the eve of trial regarding an estate dispute over a property.

The plaintiffs argued there was no binding agreement as certain terms were not finalized, and disputed the calculation of 'net proceeds of sale', specifically regarding capital gains tax and sale expenses.

The court found that the Minutes of Settlement constituted a binding agreement and enforced it, holding that the objective interpretation of the agreement required the deduction of capital gains tax and shared expenses to determine the net proceeds.

The plaintiffs commenced an action claiming over $1 million in unpaid loans and an unrecorded security interest in several properties.

They obtained ex parte certificates of pending litigation (CPLs) against five properties that had been sold to the moving defendants.

The moving defendants, claiming to be bona fide purchasers for value without notice, brought a motion to discharge the CPLs.

The court found that while the plaintiffs had a triable claim, the balance of convenience and equities favoured discharging the CPLs, as damages would be a satisfactory remedy and the plaintiffs failed to demonstrate that the moving defendants were knowingly involved in a scheme to defeat their claims.

The motion was granted and the CPLs were discharged.

The court heard three service and pleadings-related motions in a complex fraud action.

The defendant Mark Gross successfully moved to set aside a prior ex parte order validating service on him, arguing the claims against him were intertwined with insolvent corporate defendants and should be addressed in commercial list insolvency proceedings.

Three numbered company defendants successfully moved to set aside their noting in default, as they had not been given notice of the default proceedings while a motion to validate service on them was pending.

The plaintiffs' motion to validate service was granted for the numbered companies and one individual defendant who had actual notice, but dismissed regarding other defendants due to insufficient evidence of notice or efforts to serve.

The plaintiffs brought a motion to compel production of documents, answers to refused questions, and re-attendance for further examinations of several defendants and a non-party witness following cross-examinations on an affidavit and examinations under Rule 39.03.

The examinations were conducted in the context of a pending motion by the defendant Purchaser Corporations to discharge certificates of pending litigation.

The court granted partial relief, ordering the production of share purchase agreements and answers to specific questions regarding corporate control and share transfers, finding them relevant to the bona fides of the property transactions.

The court dismissed the requests for voluminous due diligence documents as overbroad and declined to order re-attendance for further examinations.

The plaintiffs brought a motion requiring the defendants, as Estate Trustees, to pass the accounts.

After six adjournments, the plaintiffs requested a further deferral to address unanswered questions.

The court declined to prolong the matter, noting the depletion of estate assets, and dismissed the motion on a without prejudice basis.

The plaintiffs also consented to dismiss the claim against one defendant.

The court awarded costs of $5,100 for the dismissed claim and $16,156.27 for the motion to the defendants, payable forthwith by the plaintiffs.

The applicant brought a guardianship application regarding one of the respondents, which was dismissed.

The respondents sought costs.

The court found no reason to depart from the normal rule that costs follow the event.

The court awarded partial indemnity costs to the respondents, fixing the costs at $56,224.11 for one respondent and $44,000 for the other, payable by the applicant in three instalments.

Two competing applications were brought by family members.

The applicant daughter applied for guardianship over her 90-year-old mother and challenged the validity of her mother's new will, powers of attorney, and the transfer of her home to her other daughter, alleging undue influence and lack of capacity.

The mother applied to remove the applicant daughter as a joint account holder on her investment account.

The applicant daughter moved to consolidate the applications into an action requiring a trial.

The court found that the mother's capacity was the controlling issue and could be decided on the application record without a trial.

Relying on expert psychiatric evidence and the mother's own testimony, the court concluded that the mother had the requisite capacity to manage her property and personal care, grant powers of attorney, make a will, and make an inter vivos gift.

Because the mother had capacity and the impugned instruments were executory, the court declined to direct a trial on the issue of undue influence.

The applicant daughter's application was dismissed, and the mother's application to remove the applicant daughter from the joint account was granted.

Following the dismissal of the applicant's applications to remove the respondent as an estate trustee and compel the closing of a real estate transaction, the court determined costs.

The court found that the applicant's unilateral actions necessitated the litigation and that he should be personally liable for costs, rather than the estate.

The respondent was awarded costs fixed at $15,000 plus disbursements and HST on a partial indemnity basis.

The deceased appointed her three children as joint estate trustees.

Due to extreme hostility and acrimony, the siblings were unable to administer the estate, which consisted primarily of a $66,000 bank account.

Two siblings brought an application to remove the third, who brought a cross-application to remove them.

The court found that the third sibling demonstrated palpable animus and made abusive statements and threats.

Applying the test for removal of a trustee, the court removed the third sibling and allowed the other two to continue as the sole estate trustees.

Following a successful motion by the defendants to set aside a default judgment and writ of execution, the court determined the issue of costs.

Although the defendants were granted an indulgence (which normally results in costs payable to the opposing party), the court awarded costs to the defendants.

The court found that the plaintiff's counsel engaged in conduct that unnecessarily complicated and lengthened the proceedings, including insisting on an overly high legal standard, conducting unnecessary cross-examinations of the defendant and his counsel, and sending misleading correspondence to the enforcement office.

The plaintiff was ordered to pay the defendants' partial indemnity costs fixed at $23,798.36.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff in a construction dispute.

The plaintiff had noted the defendants in default despite receiving an email from the individual defendant requesting notice before being noted in default.

Applying the five-part test from Intact Insurance, the court found that the defendants moved promptly, had a plausible excuse for the default, and that the interests of justice favoured a determination on the merits.

The court set aside the default judgment and ordered the return of monies collected pursuant to a writ of seizure.

The defendants brought a motion to compel the plaintiffs to answer approximately 58 refusals arising from an examination for discovery.

The underlying action involves claims of breach of a dealership agreement, trademark infringement, and false warranty claims.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure.

The court ordered the plaintiffs to make further inquiries regarding a specific networking trip and to produce targeted reports related to alleged false warranty claims, but dismissed the defendants' requests for broader electronic searches and financial records as disproportionate.

Following a successful motion by the plaintiffs to compel the defendants to answer undertakings and refusals, the court determined the appropriate costs award.

The plaintiffs sought $35,000 representing 70% of their full indemnity costs, while the defendants argued the parties should bear their own costs or pay $5,000.

The court found no basis to depart from the general rule that costs follow the event, but declined to award costs on a substantial indemnity scale as the defendants' conduct was not reprehensible.

The court fixed costs at $26,000 payable by the defendants to the plaintiffs.

The defendants sought over $20,000 in costs after successfully obtaining directions to defer the plaintiffs' proposed summary judgment motion.

The costs claimed related to the motion itself and various informal appearances, including Case Conferences and Civil Practice Court.

The court denied costs for the Case Conferences, emphasizing that costs consequences for informal appearances should be rare to encourage access to justice and efficiency.

The costs of the motion itself were reserved to the judge who finally disposes of the action.

The plaintiffs sought to schedule a motion for summary judgment arising from the termination of a distributorship agreement shortly after they paid over $1 million to buy out a partner’s interest in the business.

The defendants opposed scheduling the motion, arguing that the dispute involved complex factual issues and incomplete discovery.

The court held that summary judgment is most appropriate where a discrete, determinative issue can resolve all or a substantial portion of the litigation.

Given the numerous pleaded causes of action, disputed contractual terms, and the need for discovery, the court found the proposed motion premature and unlikely to produce proportional savings in time or cost.

The plaintiffs were granted time to reformulate their motion around discrete issues; otherwise the matter would proceed through discovery and toward trial.

During a civil jury trial, the defendants sought to read portions of the plaintiff’s examination for discovery into evidence pursuant to Rule 31.11(1) of the Rules of Civil Procedure.

The plaintiff objected, arguing that the rule in Browne v. Dunn required the defendants to first put the evidence to the plaintiff during cross‑examination at trial.

The court held that Rule 31.11 permits a party to read discovery evidence into the record as admissions provided it is not used for impeachment purposes.

Balancing fairness considerations and the trial context, including the presence of a jury, the court allowed the defendants to read in the proposed excerpts.

The court also indicated that the plaintiff could seek leave to provide reply evidence if the read‑ins raised issues that required a response.

During a defamation trial, the plaintiff brought a motion to read into the record an affidavit sworn by a deceased witness.

The defendants opposed the motion, arguing the affidavit was inadmissible hearsay.

The court applied the principled exception to the hearsay rule, finding that the affidavit met the requirement of threshold reliability.

The motion was granted, and the affidavit was admitted with a mid-trial instruction to the jury regarding its weight.