Joseph Figliomeni

The decision addresses claims for dependant’s support under Part V of the Succession Law Reform Act by Elena Nikitina (alleged common-law spouse) and Rosa Maria Huynh (adult child) against the estate of Cong Hoanh Huynh.

The court found that Ms. Nikitina was not a common-law spouse and thus not entitled to support, but that Rosa was a dependant and entitled to a lump-sum support payment.

The judgment provides a detailed analysis of the legal and factual requirements for establishing cohabitation and dependency, and the quantum and duration of support for adult children.

This case involves a challenge to the validity of a holograph will, which disinherited the applicant, Lara Korba, in favour of her brother, the respondent Ian Farooque, who was also named estate trustee.

Lara alleged lack of testamentary capacity, knowledge/approval, and undue influence.

The application sought various remedies, including transferring property back to the estate, an inventory, restraint on asset disposition, appointment of an Estate Trustee During Litigation (ETDL), and extensive production of financial, medical, and testamentary records.

Ian brought a cross-motion to strike portions of Lara's supplementary affidavit.

The court addressed several agreed-upon matters and ruled on contested issues, partially granting production of counselling records, denying further general medical and financial records, and partially striking the applicant's affidavit by removing irrelevant and prejudicial allegations while retaining those relevant to the undue influence claim.

The applicants brought a motion to remove Tiffany Jean as Estate Trustee of the Estate of Warren Nelson Holbrook and for an interpretation of the Hotchpot Clause in Mr. Holbrook’s Will.

The court dismissed the motion to remove the Estate Trustee, finding that the applicants had not met the high threshold for removal, despite ongoing family friction and concerns about conflict of interest regarding a family business (Rejenmor).

The court provided directions for the future of Rejenmor, requiring its windup or sale within two years.

Regarding the Hotchpot Clause, the court adopted the Estate Trustee's interpretation, which treated lifetime advances to beneficiaries as gifts rather than loans requiring repayment, resulting in an unequal distribution where only one beneficiary would receive a residual share.

The court addressed a motion for directions in an estates dispute.

The motion did not proceed due to both parties' non-compliance with the Central West Practice Direction regarding electronic document uploading to Case Centre.

The judge highlighted significant issues with unbookmarked and unhyperlinked materials, which impeded the court's ability to prepare efficiently.

The motion was adjourned, and revised materials were ordered, with costs of the day fixed at $1,500.00 in the cause.

The judge emphasized that counsel's failure to comply with electronic filing requirements should not be charged to clients.

This decision concerns the costs award following the dismissal of LivingArt Kitchens Inc.'s motion for extensive interlocutory injunctive relief against former employees and related corporations.

The defendants sought costs on a substantial or partial indemnity basis, while LivingArt argued for no costs or significantly reduced partial indemnity costs.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure, found that while all parties contributed to procedural issues, LivingArt was the primary cause of the extraordinary legal expenses.

The court awarded partial indemnity costs to the defendants, reducing their aggregate claim to reflect some unreasonable claims and their own contributions to the litigation's complexity.

LivingArt Kitchens Inc. sought an interim and interlocutory injunction against three former employees/independent contractors and their associated corporations, alleging breaches of contract, fiduciary duties, and misappropriation of confidential information.

The extensive relief sought included prohibitions on competing, soliciting clients, using confidential information, and various accounting and asset freezing orders.

The court dismissed the motion, finding that LivingArt failed to establish a strong prima facie case, demonstrate irreparable harm, or show that the balance of convenience favored granting the injunction.

The court noted significant evidentiary issues and procedural irregularities, concluding that damages would be an adequate remedy if breaches were proven at trial.

The appellant, Amtim Capital Inc., appealed the dismissal of its claim against Appliance Recycling Centers of America (ARCA) for alleged underpayment due to improper allocation of head office expenses.

The trial judge found Amtim failed to discharge its onus of proving ARCA breached the agreements or that the expense allocation was not in accordance with U.S. GAAP.

The Court of Appeal upheld the trial judge's findings, including the refusal to draw adverse inferences against ARCA for alleged disclosure deficiencies, noting Amtim's failure to pursue further production motions or utilize contractual access rights.

The appeal was dismissed, and the appellant was ordered to pay costs.

Yvette Dubajic applied to pass her accounts as Estate Trustee and Power of Attorney for Property for her late father.

Her sister and niece opposed the accounts, sought an accounting back to 2003, and applied to remove Yvette as Estate Trustee.

The court found Yvette acted with ordinary prudence and diligence, passed her accounts for the relevant periods, and dismissed the application to remove her.

The court also awarded Yvette $15,000 in executor's compensation and ordered the opposing parties to personally pay a portion of her legal costs due to their unreasonable conduct.

The plaintiff, a trust company, sought summary judgment to enforce a compensation agreement for its services as attorney for property under a continuing power of attorney.

The defendant, who had revoked the power of attorney, disputed the quantum of fees, arguing that compensation should be determined by the Substitute Decisions Act rather than the contractual agreement.

The court granted summary judgment for the plaintiff, holding that the express compensation terms in the validly executed agreement superseded the statutory compensation scheme under the Substitute Decisions Act.

The court found no genuine issue requiring a trial regarding the enforceability of the contract or the calculation of fees based on the agreed-upon formula.

The applicant sought directions in an application to set aside her mother's will for incapacity and undue influence, and to contest a property transfer.

The motion was adjourned on consent, but the applicant's request for specific adjournment terms, including freezing a condominium property, was denied.

The court criticized the applicant's counsel for unilateral scheduling, lack of civility, and overreaching demands, ordering the applicant to pay the respondents' costs thrown away.

This is a costs endorsement following an appeal where the appellant, Linda Palichuk, was entirely unsuccessful on all issues, including an application for leave to appeal a Superior Court costs order.

The appellant had persisted in seeking a guardianship order for Nina Palichuk despite an expert report confirming Nina's capacity.

The respondents were entirely successful.

The court, considering Rule 57.01 of the Rules of Civil Procedure, ordered costs payable to each respondent.

Linda Palichuk appealed a Superior Court decision that found her mother, Nina, capable of managing her affairs and executing various instruments (will, powers of attorney, property transfer), refused a guardianship order, and dismissed Linda's undue influence claim as hypothetical.

The appeal also challenged an order removing Linda from Nina's bank account and a costs award against Linda.

The Court of Appeal dismissed the appeal, upholding the finding of capacity, affirming that undue influence claims regarding a living, capable person's executory instruments are premature and hypothetical, and upholding the costs award.

The plaintiff, a personal services corporation, entered into sales and management agreements with the defendant, a U.S. corporation, to manage its Canadian subsidiary.

The plaintiff's compensation was based on the subsidiary's net profit, calculated in accordance with U.S. GAAP.

The plaintiff sued for breach of contract, alleging the defendant improperly allocated corporate overhead costs to the Canadian subsidiary, thereby artificially reducing the net profit and the plaintiff's compensation.

The court dismissed the action, finding the plaintiff failed to prove on a balance of probabilities that the defendant's allocation of corporate overhead costs was not in accordance with U.S. GAAP.

The court also dismissed additional claims for unpaid invoices and wrongful termination due to lack of evidence.

The moving party, an estate trustee, brought a motion to add her sister as a respondent to two consolidated applications: an application to pass accounts and an application for the removal of the estate trustee.

The sister and her daughter opposed the joinder.

The court found that the sister was an interested party who had demanded an accounting and was a possible beneficiary of the estate.

Applying Rules 5.03 and 9.01 of the Rules of Civil Procedure, the court concluded that the sister was a necessary party whose rights could be affected by the outcome.

The motion was granted, and the sister was ordered to be added as a party to both applications.

This appeal concerned the interpretation of a will clause granting an option to purchase "the farming business carried on by me." The testator had ceased active farming years prior to her death, instead leasing the land.

The application judge found the farming business had ceased, causing the option to lapse.

The Court of Appeal reversed, holding that the application judge erred by not applying the presumption under s. 22 of the Succession Law Reform Act, which states a will speaks as if made immediately before death.

The Court found that the testator was still carrying on a farming business at the time of her death through leasing the land and declaring farm income, thus the option was valid.

The applicant sought a declaration that a property transferred by the deceased mother to the respondent son was held in a resulting trust for the estate, and an order requiring the respondent to pass accounts.

The court found that the presumption of resulting trust was rebutted by evidence showing the mother intended to gift the property to the respondent, who had lived with and cared for her.

The request to pass accounts was dismissed as statute-barred and unfair due to an eight-year delay, though the respondent was ordered to provide a sworn statement of the deceased's assets at the time of death.

The applicant sought to be appointed as litigation guardian for her 89-year-old grandfather, who suffers from dementia, in order to pursue an application against his former attorney for property for alleged misappropriation of funds.

The respondent opposed the appointment, arguing there was insufficient medical evidence of incapacity.

The court reviewed the uncontroverted evidence, including letters from the attending physician and observations from the care team, and found the grandfather incapable of managing property.

The applicant was appointed as litigation guardian.

This endorsement addresses the issue of costs following a trial where Arctic Spas Oakville Inc. (ASOI) was awarded damages against Blue Falls Manufacturing Ltd. The court awarded ASOI partial indemnity costs of $450,000, all inclusive, from Blue Falls.

The court denied ASOI's claim for substantial indemnity costs, finding the defendants' conduct, while lengthening the proceeding, did not meet the "reprehensible" standard.

The court also rejected Blue Falls' argument that Rule 49.10(2) (offer to settle) applied to limit ASOI's costs, determining that ASOI's recovery at trial, including pre-judgment interest and reasonable costs up to the offer date, exceeded the defendants' all-inclusive offer.

Costs were not awarded between the other plaintiffs and defendants due to evenly divided success.

This endorsement addresses the issue of costs following a summary trial where judgment was granted to the plaintiff against both corporate and personal defendants for $50,000 each, plus interest, under a debenture and personal guarantee respectively.

The plaintiff sought full or substantial indemnity costs, relying on a contractual provision in the guarantee and a prior offer to settle.

The defendants argued the costs were excessive.

The court, exercising its broad discretion under the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, found the plaintiff's costs reasonable and warranted a higher scale due to the defendant's failure to admit a key fact (personal guarantee) that prolonged the trial.

The court awarded the plaintiff $55,000 in costs, inclusive of HST and disbursements.

Following the dismissal of the plaintiff's motion for an injunction, the parties were unable to agree on costs.

The defendants sought substantial indemnity costs of $35,000, citing the plaintiff's uncooperative conduct and failure to produce affiants for cross-examination despite a court-ordered timetable.

The court awarded the defendants their costs on a substantial indemnity scale fixed at $35,000, finding the plaintiff's lack of cooperation glaring.

The court declined to order the plaintiff's principal personally liable for the costs, noting that the defendants' corporate remedies as minority shareholders remained to be decided.