Kurt R. Pearson

The applicants brought a preliminary motion (Seepa motion) seeking an order for document production, including medical records and lawyer's files, to ascertain the validity of the deceased's will.

They raised concerns about testamentary capacity, suspicious circumstances, and undue influence.

The respondents opposed, arguing the estate was modest and privacy interests outweighed the need for production, suggesting a resulting trust claim was more appropriate.

The court found the applicants met the low evidentiary threshold for document production, noting the deceased's age, the circumstances of will preparation by a non-lawyer relative, a prior Facebook post by a respondent indicating dementia, and alleged isolation of the applicants.

The motion was granted.

The applicant sought a declaration that the purported last will and testament of his late father was invalid.

The deceased had suffered a severe stroke resulting in left-sided paralysis and cognitive impairment shortly before the will was allegedly executed.

Relying on expert medical evidence and hospital records, the court found it was physically impossible for the deceased to have signed the will as alleged by the respondent.

The application was allowed and the will was declared invalid.

The applicant brought an application under s. 2(5) of the Declarations of Death Act for an order declaring her husband deceased.

Her husband disappeared while on vacation in Bermuda in 2014 and had not been seen or heard from since.

The respondent life insurance company did not oppose the application.

The court found that the applicant had met the burden of establishing that her husband had been absent for at least seven years, that reasonable inquiries had been made, and that there was sufficient evidence to find he was dead.

The application was granted.

This decision addresses the costs award following an application where the parties had mixed success.

The court found the Applicants were the more successful parties overall, despite the Respondent's partial success in confirming his tenants' right to use a right of way.

The court determined that the Respondent's unreasonable conduct, including installing a dock and cameras and interfering with the Applicants' property, necessitated the litigation.

Considering the nature and complexity of the case, the parties' conduct, and the remedies obtained, the court awarded the Applicants $25,000 in partial indemnity costs, inclusive of HST and disbursements, under Rule 57.01(1) of the Rules of Civil Procedure and the Courts of Justice Act.

The applicants, waterfront property owners, sought to restrict the respondent's use of a deeded right-of-way (ROW) over their land, arguing against its "commercialization" by the respondent's AirBnB tenants and the installation of a dock and surveillance cameras.

The respondent, owning a landlocked abutting property, contended his tenants were invitees entitled to use the ROW and that the dock was for safety.

The court ruled that the respondent's tenants could use the ROW as invitees, finding this a reasonable use of cottage property.

However, the court determined that the installation of a dock and cameras, and general trespass, were unreasonable expansions of the easement not necessary for water access.

The applicant, a secured creditor and shareholder of the respondent, applied to appoint a receiver over the respondent's assets, which primarily consisted of patents for waste-to-energy technology.

A founder and shareholder of the respondent moved to stay the application, arguing the dispute over the validity of the applicant's security should be arbitrated under a unanimous shareholder agreement.

The court dismissed the motion to stay and granted the receivership application, finding that the respondent lacked funds to maintain its patents or participate in arbitration, and a court-appointed receiver was necessary to preserve the intellectual property and determine creditor priorities.

This endorsement addresses costs for two motions heard on September 4, 2018.

The plaintiff's motion to strike portions of the defendants' statement of defence and counterclaim was largely successful, as the impugned allegations were found to be scandalous, embarrassing, and untenable in law.

The defendants Perry and Premier's motion for contempt of court against the plaintiff was dismissed due to a slim prospect of success and marginal utility.

The court awarded substantial indemnity costs to the plaintiff against defendants Clifford Perry and 2543727 Ontario Ltd. o/a Premier Stairs and Railings for both motions, citing the reprehensible and scandalous nature of the struck pleadings and the redundancy of the contempt motion.

No costs were awarded against Kevin Gurnsey.

The plaintiff moved to strike certain portions of the defendants' statement of defence and counterclaim, alleging they were untenable in law, irrelevant, or scandalous.

The court allowed the motion, striking allegations related to stress and anxiety as scandalous and lacking probative value.

Claims of sexual harassment under the Human Rights Code were also struck because the plaintiff corporation was not vicariously liable for a co-worker's alleged harassment under sections 5(2) or 7, and the defendants failed to plead a claim of discrimination based on a poisoned work environment under section 5(1).

No leave to amend the pleadings was granted.

The plaintiff, Leon Filbey, brought an action against his ex-wife, Tania Ashe (a financial advisor), her company, Sun Life, and their children, alleging issues with irrevocable beneficiary designations on life insurance policies, negligence, breach of fiduciary duty, misrepresentation, and breach of privacy.

The defendants moved for summary judgment, arguing that the claims were statute-barred or untenable.

The court found that claims related to the irrevocable beneficiary designations and earlier acts of negligence/breach of duty were statute-barred due to the plaintiff's knowledge of the issues by March 2012, exceeding the two-year limitation period.

For the remaining claims from 2015, the court found no evidence of damage for negligence/breach of duty and determined that the breach of privacy claim did not meet the "highly offensive" threshold established in Jones v. Tsige, as Ms. Ashe's actions were largely justified by her role as mother and former advisor to protect the children's trust.

Consequently, the defendants' motions for summary judgment were granted, and the plaintiff's action was dismissed in its entirety.

The defendants brought a motion to set aside a noting in default.

The plaintiff, an incarcerated individual, had commenced an action regarding a property transfer but failed to properly serve the statement of claim within the required six-month period.

Despite the defendants' numerous delays and failures to comply with previous court orders, the court granted the motion to set aside the noting in default because the underlying service of the statement of claim was defective.

The court deemed service effected and set a timetable for the delivery of a statement of defence and responding materials for a pending summary judgment motion.

Following a summary judgment ruling arising from a failed real estate transaction, the court addressed the issue of costs.

The plaintiffs had succeeded in obtaining damages for losses arising from the defendant’s failure to complete an agreement of purchase and sale, including damages for the resale loss and partial recovery of special damages.

The court considered the parties’ settlement offers, the degree of success, and the factors under Rule 57.01 of the Rules of Civil Procedure.

While the plaintiffs achieved overall success, the defendant’s litigation conduct was not unreasonable and included meaningful settlement offers and appropriate admissions.

The court awarded partial indemnity costs to the plaintiffs in a fixed amount.

Costs decision following a property dispute in which both parties claimed title to a cottage.

The plaintiff advanced claims based on proprietary estoppel and unjust enrichment, while the defendant estate sought clear title.

The trial judgment granted the plaintiff a 15‑year licence to use the property, producing a mixed outcome.

In determining costs, the court considered proportionality and the factors under s.131(1) of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, as well as settlement offers that did not engage Rule 49.

Finding the plaintiff was more successful overall, the court ordered the defendant estate to pay the plaintiff fixed costs of $50,000 all‑inclusive.

The plaintiffs moved for summary judgment following the defendant’s failure to close an unconditional agreement of purchase and sale for a farm property.

The defendant admitted breach but argued the plaintiffs failed to mitigate their damages by relisting the property in the fall rather than waiting until spring and by failing to move back into the property to reduce carrying costs.

The court applied the principles from Hryniak v. Mauldin regarding summary judgment and held there was no genuine issue requiring a trial.

The plaintiffs acted reasonably in relisting the property promptly and accepting the first reasonable offer.

However, the court reduced certain ancillary damages due to partial failure to mitigate, ultimately awarding damages reflecting the resale price difference and several carrying costs.

The plaintiff sought enforcement of an alleged promise that a cottage would be left to her by will after she maintained, improved, and paid expenses for the property over approximately 25 years.

The estate denied that any enforceable promise existed and argued the plaintiff’s use of the cottage offset her expenditures.

The court found that the deceased had repeatedly encouraged the belief that the cottage would eventually be left to the plaintiff and that she relied on that expectation by investing significant labour and money into the property.

The court held that the elements of proprietary estoppel and unjust enrichment were established.

Instead of granting ownership or a monetary award, the court imposed an equitable remedy granting the plaintiff a 15‑year exclusive licence to occupy the cottage subject to payment of taxes, insurance, and utilities.

The applicants, lineal descendants of two brothers who purchased 64 cemetery plots in 1869, sought a declaration that they were entitled to be interred in the remaining family plots.

The respondent cemetery, relying on the newly enacted Funeral, Burial and Cremation Services Act, 2002 and advice from the Registrar of Cemeteries, refused interment without strict proof of inherited interment rights.

The court held that the 1869 Deed governed, that 'heirs' included lineal descendants, and that the new Act did not apply retroactively to remove substantive rights.

Furthermore, the cemetery was estopped from denying interment rights due to its 140-year practice of allowing descendants to be buried in the family plots.

A common-law spouse applied for dependant’s relief under Part V of the Succession Law Reform Act and sought a vesting order over the deceased’s home based on a constructive trust.

The application was brought against the deceased’s children as beneficiaries of an intestate estate.

The court held that claims for dependant’s support must be brought against the estate, through its executor or administrator, rather than directly against beneficiaries.

Because no estate administrator had been appointed and the estate itself was not named as a respondent, the proceeding was procedurally defective.

The application was dismissed without prejudice to reapply once an administrator of the estate was appointed.