Jonathan Mark Friedman

A motion was brought under s. 105(2) of the Courts of Justice Act for an order requiring an elderly party, aged 92, residing in a secure memory care facility, to undergo a cognitive capacity assessment.

The subject had been diagnosed with moderate stage dementia and had a documented history of confusion, memory deficits, and failed capacity screening.

He opposed the motion by affidavit, asserting his capacity.

The court applied the two-part threshold under s. 105(3) and the factors from Abrams v. Abrams, finding ample evidence of significant cognitive deficits and that capacity was a material issue in both the action and a related application.

The motion was granted, and a concurrent stay of a related motion to remove the moving party as litigation guardian was ordered pending the outcome of the assessment.

The appellant appealed a decision of the Superior Court of Justice dismissing its application for a declaration of rights respecting an easement held by the respondent over a portion of the appellant's lands.

The appellant argued that the application judge made a palpable and overriding error regarding the extent of the easement, claiming it extended from the shoreline into the channel.

The Court of Appeal found no error in the application judge's reasoning and dismissed the appeal, awarding costs to the respondent.

The Court of Appeal for Ontario dismissed the appeal of three decisions arising from a single summary judgment motion regarding the status of a disputed portion of a road ("Road A") in the Township of Coleman.

The appellants sought a declaration that the road was a public, common, or access road to facilitate subdivision approval and claimed damages for alleged municipal misfeasance.

The court found no error in the motion judge’s use of partial summary judgment, nor in his findings that the road was neither a public nor common road.

The court also dismissed motions to admit fresh evidence and denied leave to appeal the costs order.

The applicant, the 85-year-old mother of the deceased filmmaker Charles Herbert Officer, sought extensive financial and corporate disclosure from various respondents to support her application for dependant support under the Succession Law Reform Act.

The respondents, including the estate trustee, the deceased's former partner, and business associates, had already provided significant financial disclosure, including tax returns, bank statements, and a business valuation.

Justice Faieta dismissed the applicant's motion for further disclosure, finding the requests overbroad, unnecessary, and lacking proportionality, with minor exceptions consented to by the Estate Trustee.

The application was also dismissed on consent against several professional respondents.

The appellant appealed a trial judgment setting aside her mother's 2016 will and a related property transfer on the grounds of diminished capacity and undue influence.

The trial judge had found that the appellant exerted undue influence over her mother and failed to rebut the presumption of undue influence regarding the property transfer.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's articulation of the legal principles or her application of those principles to the factual findings, which were fully supported by the record.

This case involves two applications for dependant support under the Succession Law Reform Act and an application to collapse testamentary trusts.

The deceased, John Anthony Czerkas, died leaving two Wills.

His common-law spouse, Louann Culbert, and his daughter, Laura-Lea Czerkas, each sought dependant support.

Laura-Lea also sought to collapse the trusts established for her benefit in the Wills.

The court found Louann Culbert to be a dependant and granted her significant lump-sum support of $925,000, finding that the deceased had not made adequate provision for her.

The court found Laura-Lea Czerkas to be a dependant but dismissed her application for additional dependant support, concluding that the deceased had adequately provided for her in his Wills through substantial trusts.

However, the court granted Laura-Lea's request to collapse the testamentary trusts, allowing her immediate access to the funds based on the rule in Saunders v. Vautier.

This appeal concerns the applicable limitation period for an equitable trust claim against a deceased's estate.

The respondent, a common-law spouse, brought a claim for constructive trust and unjust enrichment against the estate more than four years after the deceased's death.

The motion judge applied a ten-year limitation period under the Real Property Limitations Act (RPLA).

The Court of Appeal, applying a holistic statutory interpretation approach, determined that the two-year limitation period under section 38(3) of the Trustee Act applies to equitable trust claims against estates, as "wrong" in section 38(2) encompasses unjust enrichment.

The Court found that the longer RPLA period does not apply to general estate claims, emphasizing the legislative policy for expeditious estate administration.

Consequently, the respondent's equitable trust claim was statute-barred and dismissed.

The appellants appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, which sought to dismiss a counterclaim brought against them by the respondents.

The motion judge found that the appellants' expression did not relate to a matter of public interest, failing the initial threshold for an anti-SLAPP motion.

The Court of Appeal upheld this decision, concluding that the appellants' expressions were primarily concerned with private property interests (e.g., tree protection, fencing, sightlines) related to an adjacent retirement facility development, rather than broader public concerns, despite the development itself having public interest aspects.

The court affirmed the deferential standard of review for a motion judge's finding on whether an expression relates to public interest and confirmed that the motion judge did not err by considering the context of the expressions without impermissibly assessing motivations.

The Court of Appeal dismissed an appeal from a contempt order and a costs order issued in an estate proceeding.

The appellant, an alternate executor and beneficiary, had been found in contempt for failing to comply with an order to grant access to an estate property and produce documents to the Estate Trustee During Litigation (ETDL).

The motion judge had ordered an earlier vacation date for the property and awarded $18,000 in costs against the appellant.

The appellate court found no error in the contempt finding, the substituted service order, or the costs award, noting the appeal was largely moot as the property had been sold.

The appellants appealed a decision granting the respondent's application for the return of a deposit after she terminated an agreement of purchase and sale for a residential property due to a registered easement.

The Divisional Court allowed the appeal, finding that the application judge committed a palpable and overriding error in concluding that the purchase agreement did not provide sufficient notice of the easement.

The agreement specifically referenced the easement in the legal description and the respondent failed to establish that the easement did not fall within the exception for minor utility easements.

The matter was returned to the application judge to determine damages.

This endorsement from a case conference addresses delays in the discovery process across several consolidated actions.

The primary issue identified was Mr. Behzad Pilehvar's failure to produce all relevant documents, including approximately 11,000 emails and text messages.

The court ordered Mr. Pilehvar to deliver a further and better affidavit of documents by December 19, 2023.

The endorsement also noted Mr. Pilehvar's counsel's contemplation of bringing a motion to remove himself from the record, which would impact scheduled discoveries and a planned mediation session in early spring 2024.

The court provided directions for scheduling future motions and case conferences.

Ms. Sokil sought a stay of an order that accelerated the enforcement date of a writ of possession, leading to her eviction from an Estate property.

Her motion to stay the order pending appeal was dismissed by the motion judge.

Ms. Sokil was subsequently removed from the property, rendering her panel review motion before the Court of Appeal moot.

The Court of Appeal dismissed the motion, finding it served no purpose.

The appellant, as estate trustee, appealed a lower court decision that found the respondent was entitled to funds in joint bank accounts.

The appellant argued the application judge erred by failing to apply the presumption of resulting trust and by concluding that the respondent was entitled to the funds without corroborating evidence of a gift.

The Court of Appeal dismissed the appeal, finding that the presumption of resulting trust argument was not raised in the court below and that there was sufficient corroborating evidence to support the application judge's finding that the deceased intended to gift the amounts in the accounts to the respondent.

The applicant sought to remove her two sisters as estate trustees and compel them to pass accounts, alleging inaction in distributing estate funds from a 2017 house sale.

One respondent agreed to step aside, while the other refused to distribute funds, holding them as security for a perceived claim regarding GIC accounts that had not been litigated.

The court found the refusing trustee's position unreasonable and detrimental to the estate's proper administration.

The court ordered the removal of both estate trustees, the appointment of a neutral professional trustee, and the passing of accounts.

The Court of Appeal for Ontario considered whether a general revocation clause in a will was effective under s. 52(1) of the Succession Law Reform Act to revoke existing beneficiary designations by instrument for Registered Retirement Income Fund (RRIF) and Tax-Free Savings Account (TFSA) plans.

The court affirmed the application judge's finding that the clause, which revoked "all Wills and Testamentary dispositions," did not "expressly relate to the designation" as required by the Act.

Consequently, the prior beneficiary designations remained valid.

The court also confirmed that a conflicting Superior Court decision (Ashton Estate) on this point was "plainly wrong." The appeal was dismissed.

The plaintiff brought a motion for contempt against the defendants for allegedly breaching a court order that prohibited encumbering a specific property in excess of $309,000.

The defendant Lauri Partanen admitted to being in contempt and was given an opportunity to purge his contempt by paying $216,000 into court.

The motion for contempt against the defendants Eric and Janet Partanen was dismissed, as the plaintiff failed to prove beyond a reasonable doubt that they intentionally breached the order, and Janet was not a party to the proceeding when the order was made.

The penalty phase for Lauri and the issue of costs were adjourned.

The applicants, co-executrixes of an estate, sought an order to withdraw the respondent's Notice of Objection to their appointment as Estate Trustees and to declare the respondent a vexatious litigant under s. 140(1) of the Courts of Justice Act.

The respondent failed to appear at the hearing.

The court struck the Notice of Objection due to lack of supporting evidence.

However, despite the respondent's concerning conduct, including baseless claims, threats against legal professionals, and threats of violence, the court declined to declare him a vexatious litigant, finding his actions had not yet reached the persistent and unwarranted level required by the statute and established case law.

The court noted the recent nature of the respondent's actions and the importance of access to courts.

Costs incurred for estate administration were to be borne by the Estate on a full indemnity basis.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

A case conference was held regarding five related actions, three of which were on the Commercial List and two were regular civil matters.

Counsel agreed that the actions should be case managed together for efficiency.

The judge agreed to act as the case management judge for all five cases, which will require transferring the Commercial List actions to regular civil actions.

The appellant purchasers appealed a summary judgment finding them in breach of an agreement of purchase and sale (APS) for refusing to close due to alleged undisclosed easements.

The purchasers argued that Schedule A of the APS imposed an unqualified duty on the vendors to provide clear title, requiring the discharge of all easements, including standard utility easements.

The Court of Appeal upheld the motion judge's interpretation, finding that Schedule A did not conflict with paragraph 10 of the standard form agreement, which excluded minor utility easements.

The court reasoned that the purchasers' interpretation would lead to an absurd commercial result, as it would require the removal of essential services.

The appeal was dismissed, and costs were awarded to the respondents.