Joseph Figliomeni

The respondents Adriana and Melinda Paletta brought a motion within the applicant Renzo Paletta's application to dismiss the application and for leave to seek an accounting of his management of their mother's property.

The mother's capacity and the validity of powers of attorney were in issue.

The court found reasonable grounds to believe the mother might be incapable, so it declined to dismiss the application.

It also denied leave to the respondents to seek an accounting, noting the mother could seek it herself if she were capable.

The applicants sought interpretation of their late mother's will to determine if they were liable for income tax on a RRIF for which they were designated beneficiaries.

The will contained a clause requiring them to pay tax on an RRSP, but the deceased had subsequently converted the RRSP to a RRIF and made a new beneficiary designation outside the will without any tax condition.

The court applied the armchair rule and found that the will's reference to an RRSP did not apply to the RRIF.

The court ordered the estate trustee to pay the applicants their $150,000 legacy without deduction for RRIF taxes, plus 5 percent interest under the rule of convenience.

The appellant appealed an interlocutory order requiring the production of the deceased's counselling records from 2005 to 2009 in a will challenge alleging undue influence.

The Divisional Court allowed the appeal, finding the motion judge erred in law by applying a low threshold that permitted a fishing expedition for sensitive personal information.

The court also found a palpable and overriding error in relying on the absence of evidence of undue influence in the two years prior to the will's execution to justify broader disclosure.

The order for production was set aside, and costs were awarded to the appellant.

The appellants appealed a motion judge's decision refusing to remove the respondent as estate trustee and interpreting a hotchpot clause in the deceased's wills.

On appeal, the appellants conceded the motion judge's interpretation of the hotchpot clause was correct, but argued the judge erred by not addressing the disposition of holding company shares and by failing to remove the trustee due to a conflict of interest.

The Court of Appeal dismissed the appeal, finding the share disposition issue was not properly before the court and the motion judge's refusal to remove the trustee, along with her practical directions to address conflict concerns, was entitled to deference.

The moving party sought leave to appeal a December 10, 2024 decision of Faieta J. The Divisional Court granted leave to appeal specifically on the issue of the disclosure of counselling and therapy records.

Costs of the motion were fixed at $5,000 and reserved to the panel hearing the appeal.

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 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.