John Paul Zubec

The appellant and respondent, adult siblings, were named co-estate trustees of their father's estate.

Disagreements arose over the payment of estate debts, leading to a breakdown in the administration of the estate.

The application judge removed the appellant as estate trustee, finding she had obstructed the estate's administration and preferred her own interests, while dismissing the application to remove the respondent.

The Court of Appeal dismissed the appeal, finding no error in the application judge's discretionary decision and concluding that the appellant's arguments regarding the law of abatement were an ex post facto rationalization for her conduct.

The applicants sought costs against the estate trustee, Larry Atkinson, in his personal capacity, after the underlying application was stayed due to the estate's bankruptcy.

The court found Mr. Atkinson's conduct from December 2023 onward to be sufficiently unreasonable, particularly his strategic timing of the bankruptcy assignment, failure to respond to inquiries, and proceeding with a without-notice motion without full disclosure, including the breach of an undertaking.

The court awarded the applicants partial indemnity costs of $18,242.62 against Mr. Atkinson personally.

The respondents in an estate litigation matter brought a motion for directions seeking costs for an abandoned application to strike their notice of objection, and an order preventing the applicants from using estate funds to pay their litigation costs.

The court awarded the respondents partial indemnity costs for the abandoned application, finding that the applicants had accepted a Rule 49 offer after its deadline.

The court also ordered the applicants to reimburse the estate for legal fees already paid from it and prohibited further use of estate funds for litigation, interpreting the prior Order for Directions as not authorizing such disbursements and emphasizing the need to maintain a level playing field between the parties.

The defendants brought a motion to withdraw an admission made in their Statement of Defence regarding the plaintiff's entitlement to common law reasonable notice.

The plaintiff opposed the motion and brought a cross-motion to strike portions of the defendants' motion record.

The court applied the three-part test for withdrawing an admission and found that there was a triable issue regarding the enforceability of the termination provision, the admission was made in error, and the withdrawal would not cause non-compensable prejudice to the plaintiff.

The motion to withdraw the admission was granted.

The plaintiff was entitled to costs for the cross-motion, but the court offset these against the defendants' costs for the main motion, ordering each party to bear their own costs.

The plaintiff, 11123688 Canada Limited o/a Onion Auto Centre, sought a mandatory interlocutory order to regain possession of business premises from the defendants, who had unilaterally changed the locks.

The motion was brought in an intended action without a formal statement of claim.

The court dismissed the motion, finding the evidentiary record insufficient to establish irreparable harm or to properly weigh the balance of convenience under the American Cyanamid test.

The court noted the absence of required undertakings and detailed financial evidence.

An order was made for the preservation and return of the plaintiff's personal property.

Following the dismissal of the plaintiffs' defamation and unjust enrichment action after a five-day trial, the successful defendant sought costs.

The defendant sought partial indemnity costs to the date of his settlement offers and substantial indemnity costs thereafter.

The court found that the defendant's offers did not trigger substantial indemnity costs under Rule 49 and the plaintiffs' conduct did not warrant a punitive costs award.

The court awarded the defendant costs on a partial indemnity basis, fixing the amount at $59,940.78 inclusive of fees, disbursements, and HST.

The plaintiffs, a real estate agent and her brokerage, sued the defendant for defamation and unjust enrichment.

The defamation claim arose from a letter the defendant sent to the brokerage and others, complaining about the agent's conduct and invoicing after a real estate transaction fell through due to a dispute over a buyer representation agreement.

The unjust enrichment claim was for services rendered by the agent.

The court found that while some statements in the defendant's letter were defamatory and made with malice, the defence of qualified privilege applied because malice was not the dominant purpose of the communication.

The defence of fair comment also failed due to untrue factual statements.

However, the court found that the plaintiff's own conduct disentitled her to damages for defamation.

The unjust enrichment claim was dismissed as the defendant was not enriched, and there was a juristic reason for any perceived enrichment.

The plaintiffs' action was dismissed in its entirety.

The moving party sought to vary a consent order arising from a mediated wrongful dismissal settlement, arguing the order incorrectly named a corporate entity that did not exist at the time of settlement.

The court considered whether the settlement and resulting consent order contained a mistake regarding the proper corporate defendant.

Applying the objective test for consensus ad idem and Rule 59.06, the court concluded a reasonable bystander would find the settlement was intended to be with a different corporate entity carrying on business under a similar name.

The court amended the style of cause to substitute the correct corporate defendant and vacated enforcement measures taken against the incorrectly named company.

Following an unsuccessful motion seeking removal of estate trustees, the court addressed the costs consequences of the motion.

Applying Rule 57.03(1) of the Rules of Civil Procedure, the court held that costs should ordinarily be fixed and payable immediately rather than reserved to trial.

The court rejected arguments that estate litigation principles justified deferring or shifting costs to the estate, finding the moving parties were effectively advancing creditor‑type claims against the estate rather than beneficiary claims.

The court awarded one set of partial indemnity costs to the responding parties, allocating the amount between the estate and the trustees personally while avoiding duplication.

Costs were fixed at $13,500 payable jointly and severally by the moving parties.

The plaintiff accounting firm sought costs as a sanction against numerous defendants for alleged delay in providing answers to undertakings, advisements, and refusals arising from examinations for discovery.

The plaintiff argued that the defendants took approximately sixteen months to provide all answers and that the motion was necessary to compel compliance.

The court found that although the timeline was lengthy, the delay was largely explained by the large number of defendants, the volume of undertakings, and the need to obtain detailed accounting information from multiple franchise operators.

The court concluded there was no evidence of uncooperative conduct or improper litigation tactics by the defendants or their counsel.

In the circumstances, a costs sanction was not justified.