J.P. Zubec

This decision concerns the entitlement to the former home of Yvette Poirier and certain funds allegedly misappropriated from her bank account by her late son, Paul Poirier.

The applicant, Lyse Scharfe (Yvette’s daughter and attorney for property and personal care), sought to set aside a 2016 conveyance of the property to Paul, arguing Yvette lacked capacity and was subject to undue influence.

The court found that Yvette Poirier lacked capacity at the time of the transfer and that the presumption of undue influence was not rebutted.

The 2016 conveyance was set aside, and the property was to be re-vested in the joint names of Yvette Poirier and Paul’s estate.

The court also addressed the improper registration of a mortgage on the property by respondent’s counsel.

At a case conference in a dependants' relief application, the applicants sought the summary appointment of an Estate Trustee During Litigation (ETDL).

The court adjourned the request to allow the responding party proper notice and an opportunity to be heard, noting that the respondent's counsel lacked instructions.

The court ordered the deposit of the will on consent and urged the parties to cooperate to avoid unnecessary costs in a small estate.

This decision addresses cross-applications for the removal of estate trustees in the Estate of Alfonso Sartarelli.

The deceased's two children, Elke Kasanda and Helmut Sartarelli, along with a solicitor, were appointed trustees.

The estate administration stalled due to significant conflict between Elke and Helmut.

Elke alleged Helmut prioritized his interests and was unfit, while Helmut accused Elke of obstructing administration, acting unilaterally, and disregarding fiduciary duties, particularly concerning tax payments.

The court dismissed Elke's application to remove Helmut, finding he acted reasonably and relied on professional advice.

Conversely, Helmut's application to remove Elke was granted, as the court found Elke had consistently prioritized personal grievances over fiduciary duties, obstructed necessary estate actions (like tax filings), disregarded professional advice, and acted unilaterally, thereby compromising the estate's proper administration and increasing costs.

Elke Kasanda, as Estate Trustee, sought directions for a trial of various issues, including the removal of co-trustees Helmut Sartarelli and D. Scott Murray, and disclosure of legal records from Murray concerning the deceased's estate planning and business sale.

The court dismissed the motion for disclosure of Murray's records, citing solicitor-client privilege and lack of evidence for waiver or exception.

The court adjourned the balance of the motion for directions, granting Elke leave to bring a separate motion to remove Helmut and Murray as Estate trustees, noting that such a motion does not require the same evidentiary threshold as a motion for directions under Rule 75.06.

Mediation was ordered, with costs to be borne by the Estate.

Following the dismissal of the plaintiff's motion for an injunction, the court determined the costs of the motion.

The plaintiff argued costs should be in the cause, while the defendants sought substantial indemnity costs payable forthwith.

The court applied the presumptive 'pay as you go' rule under Rule 57.03, finding no reason to depart from it.

The court rejected the request for substantial indemnity costs, finding the motion was not frivolous or an abuse of process.

Partial indemnity costs totaling $44,000 were awarded to the various defendants, with payment extended due to the COVID-19 pandemic.

The plaintiff brought a motion for an interlocutory injunction to prevent former employees and their new competing businesses from soliciting its customers.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case, as the non-competition agreements were either expired or likely unenforceable.

Furthermore, the court found no irreparable harm, concluding that damages would be an adequate remedy if the plaintiff ultimately succeeded at trial.