Judith L. Turner

Trial of 12 issues concerning the estate of Nadia Wyszatko, which had remained unadministered for over a decade due to sibling disputes.

The applicant, Julia, sought repayment of loans made to the estate, compensation for acting as Litigation Administrator, and orders regarding the estate's assets, including a marina property.

The court found that Julia was entitled to repayment of her loans and compensation.

The court also held that the respondent, Richard, who had taken control of the marina business and co-mingled funds, was liable for occupation rent and was not entitled to executor compensation.

The court ordered the sale of the property to satisfy the estate's debts and directed the parties to propose an independent third-party estate trustee.

Following a trial where the plaintiff contractor obtained judgment for unpaid services, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs based on an offer to settle.

The court found the offer did not trigger Rule 49.10 consequences because it was ambiguous regarding costs and, when properly calculating pre-judgment interest, the judgment was slightly less favourable than the offer.

The court awarded the plaintiff partial indemnity costs of $32,000 plus disbursements, taking into account proportionality, the defendants' partial success on a set-off, and a deduction for a mediation fee incurred due to the plaintiff's cancellation.

The plaintiff, acting through her guardian of property, brought an action against her daughter for the recovery of funds misappropriated while the daughter acted as her attorney for property.

The court found that the defendant failed to keep proper accounts, commingled funds, and used the incapable person's money for her own benefit, breaching her fiduciary duty under the Substitute Decisions Act.

The court awarded damages of $86,649.57, representing 75% of the unaccounted funds plus the costs of a previous guardianship application, and ordered the return of any remaining funds held in trust.

The plaintiff builder sued the defendant homeowners for the unpaid hold-back on a custom home construction contract.

The homeowners counterclaimed, arguing the contract was a fixed-price agreement and that the builder negligently underestimated the 'cash allowance' items, resulting in significant cost overruns.

The court held that the cash allowances were estimates and the homeowners were responsible for the overages, noting they had signed change orders approving the extra costs.

The court dismissed the negligent misrepresentation claim for lack of evidence on the standard of care and found the homeowners' claims barred by promissory estoppel.

The builder was awarded the hold-back amount, subject to a set-off for the homeowners' costs in staining the house, which the court found was the builder's responsibility under the contract.

The applicants sought an order to pass over the respondent as estate trustee of Peter Brown Kinnear's estate and appoint Katherine Kinnear as estate trustee during litigation, due to the respondent's inaction and non-compliance with a previous court order.

The court granted the order to pass over the respondent, finding that the applicants met the heavy burden required.

Despite the general rule against appointing an interested party, the court appointed Katherine Kinnear as estate trustee during litigation due to the lack of a realistic neutral alternative and the respondent's role in creating the situation.

The court also granted some ancillary orders, but narrowed the scope of a tracing order and a restraining order against the respondent.

The applicants brought an application to pass over the respondent as the Estate Trustee of the deceased's estate.

The court granted the order, appointing one of the applicants as the new Estate Trustee without security.

The court also granted the new Estate Trustee broad powers to compel the production of the deceased's financial, legal, and medical records, waiving any applicable privileges.

Furthermore, the respondent was ordered to deliver all estate records and was restrained from dissipating or encumbering any estate property.

The Court of Appeal for Ontario heard an appeal concerning the testamentary capacity of a deceased who wrote a holograph will (suicide note) shortly before his death, while under the influence of alcohol and drugs.

The lower court had found a lack of testamentary capacity and issued a blended costs order.

The appellate court revisited the determination of testamentary capacity in suspicious circumstances and the principles governing costs in estate litigation.

The Court found that the application judge erred in principle by failing to apply the correct legal test for testamentary capacity and concluded that the deceased did possess testamentary capacity.

The Court also found that the costs order below was wrongly decided, as the public policy considerations in estate litigation dictated that costs should generally be paid from the estate when the litigation arises from the testator's conduct or suspicious circumstances surrounding the will.

The appeal was allowed, the suicide note was declared a valid will, and the costs order was set aside, with new costs orders made payable from the estate.

Following a bifurcated trial regarding the departure of financial advisors and the valuation of a business, the successful plaintiffs sought costs.

The court found that while formal Rule 49 offers were not triggered, the defendants' reprehensible and deceitful conduct prior to litigation, as well as their refusal to admit facts during the trial, warranted an enhanced costs award.

Costs were fixed at $160,000, payable jointly and severally by two of the defendants.

A third defendant, against whom liability was found but no damages were sought, was not held liable for costs.

Following the dismissal of an application to admit a suicide note as a holograph will, the court determined the costs payable to the successful respondents.

The court found that the applicant acted unreasonably in pursuing the application to oust legacies in the prior will, but acknowledged the estate bore some responsibility due to the testator's actions.

The court ordered blended costs, with the applicant paying a significant portion and the remainder payable out of the estate.

The applicant sought to admit the deceased's suicide note into probate as a holograph will.

The deceased had a history of heavy alcohol and drug use and wrote the profanity-laced note shortly before taking his own life, attempting to disinherit his spouse.

The court found that suspicious circumstances existed, shifting the burden to the applicant to prove testamentary capacity.

Given the evidence of the deceased's intoxication and the lack of a definitive expert opinion on capacity, the court concluded the applicant failed to meet the burden.

The application to admit the note as a holograph will was dismissed.

The defendants brought a motion for an order to return Ann Corbet, an incapable 92-year-old suffering from advanced dementia, to their home from a long-term care facility.

Ann Corbet's attorney for personal care, Drude Corbet, had placed her in the facility after medical assessments indicated her incapacity and crisis care needs, and concerns arose regarding her care at the defendants' residence and alleged misuse of her funds.

The court dismissed the motion, finding that the attorney acted diligently and in good faith, considering Ann Corbet's best interests and statutory principles under the Substitute Decisions Act.

The court determined that Ann Corbet's expressed wishes were not sufficiently clear or consistent due to her dementia and that the defendants failed to prove the attorney acted improperly.

The appellant challenged his late brother's will but later abandoned the claim.

The respondents (estate trustees) obtained summary judgment on a counterclaim for damages representing CRA interest and penalties incurred by the estate due to the litigation delay, or alternatively, as an award of costs.

On appeal, the Divisional Court set aside the judgment, holding that commencing litigation is not an actionable wrong unless it meets the strict test for the tort of abuse of civil process, which was neither pleaded nor proved.

The court also held that estate administration expenses, such as CRA penalties, cannot be awarded as legal costs.

This costs endorsement followed a trial where the plaintiffs, Wayne and Diane Mason, were largely successful in establishing an unpaid purchase price and a vendor's lien against property, despite failing on punitive damages.

The court assessed costs based on offers to settle, parties' conduct, and success at trial, guided by principles of fairness, proportionality, and reasonableness.

The Masons were awarded their costs as sought.

Bluechip Services Inc. recovered costs on a partial indemnity basis.

Robina Khan McCracken and Jozef Zubrzycki were denied costs due to their unreasonable positions and lack of success, which hindered resolution.

The decision details the distribution of funds held in court, including trial awards, interest, and costs.

The plaintiffs sold their property but were not paid the full purchase price, leaving a balance of $340,000.

The property was subsequently transferred to the defendant McCracken, who assumed the previous owner's debts and placed several mortgages on the property.

The plaintiffs remained on the property rent-free for eleven years.

The court found the plaintiffs were entitled to a vendor's lien for the unpaid purchase price, which took priority over the mortgages placed by McCracken because she had notice of the unpaid debt.

The court dismissed claims for occupation rent and punitive damages, and ordered the funds held in court to be distributed according to the determined priorities.

The defendants brought a motion to transfer the action from Barrie (Central East Region) to the Toronto Region, which the plaintiff opposed.

The action involved shareholder oppression, real estate interests, and share valuation.

Applying Rule 13.1.02 of the Rules of Civil Procedure, the court found that a substantial part of the events and the subject matter (properties) were located in Toronto.

The plaintiff resided in York region, while the personal and corporate defendants resided/had their head office in Toronto.

The court determined that Toronto was a "substantially better" venue, satisfying the defendants' onus to demonstrate that a transfer was desirable in the interests of justice.

The motion to transfer was granted, and costs were reserved to the trial judge.

Irene Bellefeuille, 91 and incapable, was the subject of two applications: one by her son Jerry for guardianship of her property and person, and another by her daughter Jacqueline (named attorney under a power of attorney) seeking to exercise custodial powers and relocate Irene.

The court found Irene incapable.

It terminated Jacqueline's power of attorney due to strong and compelling evidence of misconduct, including co-mingling funds, using Irene's money for personal purchases, and failing to provide an adequate accounting.

The court also found Jacqueline created healthcare concerns to justify moving Irene, which was not in Irene's best interest.

Jerry Bellefeuille was appointed guardian of Irene's property and person, contingent on an updated management plan, as this was deemed to be in Irene's best interest.

The plaintiff sought leave to appeal a costs order made following three motions.

The court determined that the costs order regarding the dismissed action was final, requiring leave under s. 133(b) of the Courts of Justice Act, while the costs order for the remaining motions was interlocutory, requiring leave under Rule 62.02(4)(b).

The court dismissed the motion for leave to appeal, finding no matter of general importance for the interlocutory order and no strong grounds to find an error in discretion for the final order.

This endorsement addresses costs following a Passing of Accounts application concerning executor's compensation, the status of a joint bank account, and executor disbursements.

The applicant objectors achieved partial success, notably in having the joint account declared an estate asset and reducing the executor's claimed compensation.

Both the applicant objectors and the respondent executor sought costs from the estate.

The court applied principles from Zimmerman v. McMichael Estate and Sawdon Estate v. Sawdon regarding costs in estate litigation, determining that the executor's conduct did not warrant personal costs.

Consequently, both parties were awarded their costs, payable from the Estate.

An appeal concerning whether a residential property held in joint tenancy by a mother, son, and daughter-in-law passed by right of survivorship to the daughter-in-law upon the mother's death, or whether it formed part of the mother's estate.

The daughter sought a declaration that the property should be distributed under the mother's will.

The Court of Appeal upheld the application judge's dismissal of the application, finding that the joint tenancy was not severed by a separation agreement between the son and daughter-in-law, that the mother had gifted the property to the son and daughter-in-law, and that the mother was not subject to undue influence.

The court also upheld the costs award against the daughter.

The plaintiff brought a motion for summary judgment claiming $320,000 from her deceased ex-husband's estate.

The claim was based on a separation agreement that guaranteed her $1.5 million from the sale of a property, provided the deceased required her to accept an offer for less.

The plaintiff sold the property for $1.18 million without advising the deceased of the listing price or the offer before acceptance.

The court dismissed the action, finding that under the clear wording of the agreement, the deceased had the right to decide whether an offer under $1.5 million should be accepted.

The court also rejected the plaintiff's argument of promissory estoppel, finding the deceased's silence did not amount to a representation.