Justin DeVries

This endorsement addresses costs arising from an unsuccessful and untimely motion brought by Sarah Werner to vary an order appointing a litigation guardian for her mother, Ida Rubin.

The court found Ms. Werner's proposed motion to be an obstructionist tactic, lacking merit, and brought in breach of a scheduling order.

Due to Ms. Werner's reprehensible litigation conduct, the court awarded full indemnity costs against her to the applicant and litigation guardian.

Additionally, costs were awarded to other parties (Morris Rubin and The Bank of Nova Scotia Trust Company) from the estate, with these amounts to be allocated solely to Ms. Werner's share.

Joseph Pernica, litigation guardian for Ida Rubin, sought a case conference regarding his status amidst upcoming motions.

The endorsement addresses a purported motion by Sarah Werner to vary an order appointing Pernica as litigation guardian for Ida Rubin, arguing Pernica exceeded his mandate by obtaining Ida Rubin's banking records and challenging Ida Rubin's capacity.

The court declined to schedule Ms. Werner's motion, finding she lacked standing under Rules 59.06 and 7.06(1)(b).

The court affirmed Pernica's role as litigation guardian and provided specific directions for any future motion by Ida Rubin herself to remove the litigation guardian, emphasizing the need for transparency, personal affidavit, and attendance in open court for cross-examination due to the risk of abuse in ex parte proceedings.

The court also declined to stay the case, emphasizing the need for information sharing for mediation and a mechanism for fund distribution.

The Estate Trustee applied to rectify a drafting error in the deceased's Secondary Will.

The will mistakenly directed the redemption of 150 Class D shares to fund a $2 million bequest, but the deceased owned Class E shares, and 300 shares were required to generate the necessary after-tax proceeds.

The drafting solicitor admitted the error.

The deceased's widow opposed the rectification, arguing it should await the trial of her separate negligence claim against the solicitor.

The court applied the Robinson test, found the solicitor misunderstood or failed to carry out the testator's instructions, and granted the rectification to reflect the deceased's true intentions.

The applicant sought leave to appeal an order dismissing his motion to require his parents to undergo capacity assessments and to allow him to examine his mother for discovery.

The underlying dispute involved the validity of powers of attorney executed by the mother, who suffered from Alzheimer's disease.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision.

The court held that section 79 of the Substitute Decisions Act, rather than section 105 of the Courts of Justice Act, governed the request for a capacity assessment, and that the motions judge properly exercised his discretion in refusing the assessments and discovery.

The self-represented appellant appealed four Certificates of Assessment of Costs issued by an assessment officer following the dismissal of his earlier appeal.

The appellant raised numerous objections, including allegations that the respondents' claims for costs were fraudulent, that one corporate respondent did not exist, and that the assessment officer demonstrated bias.

The Court of Appeal dismissed the appeal, holding that the assessment officer's duty was to assess costs in accordance with the court's order, not to look behind it or review the underlying basis of the claims.

The court found no foundation for the appellant's allegations of fraud or bias.