Ian M. Hull

The court addresses a motion by the estate trustees of Carmen Debono to hold certain siblings in contempt or, alternatively, to strike their pleadings for failure to comply with a court order requiring disclosure of business email credentials and documents.

The court finds repeated, deliberate non-compliance and strikes the pleadings of David Debono and Elizabeth Muscat, stays the wrongful dismissal action until pleadings are amended, and awards significant costs.

The court declines to proceed with contempt, emphasizing that such proceedings are a last resort in civil matters.

This costs decision follows a complex family law trial between Barbara Lang-Newlands and Ian Newlands.

The court reviews the parties’ conduct, settlement offers, and relative success on issues, ultimately awarding the applicant, Barbara, $2,800,000 in costs.

The decision details the application of the Family Law Rules regarding offers to settle, the reasonableness of the parties’ behaviour, and the principles guiding costs awards in family law litigation.

This decision concerns two related lawsuits between siblings over the estate of their late mother, Carmen Debono.

The first action is for wrongful dismissal and oppression by David Debono and Elizabeth Muscat against the estate, its trustees, and two corporations.

The second is a claim by the estate, through its trustees, against David Debono, Elizabeth Muscat, and Jennifer Nesci for recovery of debts and alleged misappropriation of funds.

The court addresses interim motions for distributions and legal fees, as well as document production and the effect of an in terrorem clause in the will.

Both motions are dismissed, with the court emphasizing the need for transparency and full disclosure, and declining to enforce the in terrorem clause or grant interim relief at this stage.

The appellants, trustees of the Estate of Vincent Di Santo and the Vincent Di Santo 2003 Family Trust, appealed an order that permanently removed them and appointed CIBC Trust Corporation as replacement.

The original order also granted further interim funding to the respondent, Ottavio Di Santo.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision that permanent removal was sought and necessary.

The court upheld the motion judge's finding that the trustees' mindset had become intractable, they were in a position of conflict, acted unilaterally, or could not objectively exercise their discretion, thus meeting the high threshold of "clear necessity" for trustee removal.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

The Court of Appeal heard three motions related to an ongoing appeal concerning the removal and replacement of estate and family trust trustees.

The Appellants (original trustees) sought a stay of the order removing them and appointing CIBC Trust Corporation.

The Respondent (Ottavio Di Santo) sought to lift a stay on a costs order and to quash or stay the Appellants' appeal.

The court granted the Appellants' stay motion, finding a serious issue, irreparable harm, and balance of convenience in their favour.

The Respondent's motions to lift the costs stay and to quash/stay the appeal were dismissed.

Costs were ordered payable from the Estate.

The applicants, disinherited daughters of the deceased, brought a motion for the appointment of a neutral professional Estate Trustee During Litigation (ETDL) to manage their father's substantial estate during a will challenge.

The named estate trustees (the deceased's second wife and business associates), who were also respondents and potential witnesses in the will challenge, sought to be appointed as ETDL themselves, arguing their unique knowledge of the deceased's business.

The court found that a neutral professional ETDL was warranted given the acrimony between the parties, the estate trustees' inevitable role as witnesses, and the significant value of the estate, dismissing the estate trustees' request to appoint themselves.

The plaintiffs requested an urgent case conference to schedule a mediation and fix a trial date before the action was administratively dismissed.

One of the plaintiffs objected, citing an upcoming motion regarding the removal of his counsel in a separate action.

The court found it unfair to delay the other plaintiffs and ordered that mediation be held by June 30, 2022, and that the action appear on the trial scheduling court list on April 11, 2022.

This is a costs endorsement from the Court of Appeal for Ontario following a successful appeal where the respondent's action was dismissed.

The appellant sought full indemnity costs, arguing the respondent attempted to perpetrate a fraud at trial regarding a will's witnessing.

The court clarified the distinction between full and substantial indemnity costs, noting that conduct warranting sanction typically applies to trial proceedings.

However, the onerous task faced by the appellant on appeal due to the trial judge's acceptance of the respondent's evidence was considered.

The court also addressed the recovery of costs from the Estate, applying the "blended costs award" principle due to the testator's failure to properly execute his will, which caused the litigation.

The appellant, Brian Boese, appealed a trial judge's decision that his brother Bruce's will was formally valid under the Succession Law Reform Act.

The central issue was whether the respondent, Brenda Bayford, had proven the formal validity of a 2013 will (Version 2), which she claimed to have found after Bruce's death.

The appellant argued that the trial judge misapprehended expert handwriting evidence, which indicated that Bruce's signatures on two versions of the will (one unwitnessed, one witnessed) were identical copies, suggesting one was reproduced from the other.

The Court of Appeal found that the trial judge made a palpable and overriding error by misunderstanding the significance of the expert evidence and its implications for the appellant's theory of the case, particularly regarding the missing original unwitnessed will and inconsistencies in the respondent's testimony.

The court also rejected the respondent's motion to admit fresh evidence.

Appeal from a trial judge's costs order denying costs to the successful defendant in a will challenge.

The defendant's father left his entire estate to her.

The plaintiffs (her brothers) sued to set aside the will, alleging suspicious circumstances, lack of testamentary capacity, and undue influence.

The trial judge dismissed all claims as statute-barred under the Limitations Act, 2002, and alternatively found the will valid based on established testamentary capacity and absence of undue influence.

Despite the defendant's complete success, the trial judge awarded no costs, citing the defendant's misleading evidence regarding conversations with her father's doctor.

The Court of Appeal found the trial judge erred in law by focusing almost exclusively on one aspect of misleading evidence while ignoring the defendant's complete success on all substantive issues and failing to consider relevant factors such as settlement offers and trial complexity.

The appellant sought life insurance proceeds after paying premiums under an oral separation agreement that required maintenance of her beneficiary designation.

The insured later redesignated a new spouse as irrevocable beneficiary, and the proceeds were paid accordingly.

The majority held the respondent was unjustly enriched at the appellant’s expense and found no juristic reason under the Insurance Act to defeat restitution.

A remedial constructive trust over the full proceeds was imposed because a personal remedy was inadequate in the circumstances.

The dissent would have dismissed the appeal on the basis that statutory beneficiary protections supplied a juristic reason and that corresponding deprivation was not established.

Following a motion for interim support where the applicant was ordered to pay costs in the cause, the respondent Estate Trustee sought to vary the costs order based on a previously undisclosed offer to settle.

The court found the offer was more favourable to the applicant than the motion's outcome.

The court amended the costs order, directing that the $40,000 in partial indemnity costs be payable by the applicant in any event of the cause at the conclusion of the application.

The applicant, the common-law spouse of the deceased, brought a motion for interim support under the Succession Law Reform Act pending the final determination of her dependant's support application.

The deceased was a wealthy real estate developer who left his entire estate to his estranged wife and daughters.

The court rejected the applicant's budget of over $93,000 per month as unsubstantiated and overstated, instead awarding $30,000 per month in interim support.

The court dismissed the applicant's requests for interim legal fees, HST indemnification, and production of the deceased's estate planning files.

The court also granted the estate's cross-motion in part, imposing restrictions on the applicant's use of the estate-owned condominium, including a 15-person guest limit and a ban on posting interior photos on social media.

The defendant estate trustee brought a motion for partial summary judgment to dismiss specific allegations of breach of a settlement agreement, arguing they were statute-barred and estopped.

The plaintiffs, beneficiaries of the estate, alleged breach of fiduciary duty, self-dealing, and fraudulent concealment.

The court dismissed the motion, finding that the issues were deeply intertwined with the broader claims, involved significant credibility disputes, and were not appropriate for partial summary judgment as they could lead to inconsistent findings at trial.

Following a decision in an estate litigation matter regarding the ownership of a painting, the successful respondent sought costs on a substantial indemnity basis against the applicant co-estate trustees personally.

The court found that the applicants had acted unreasonably by commencing the application instead of accepting the respondent's pre-litigation offer to pay the appraised value of the painting.

The court awarded the respondent costs on a substantial indemnity basis, fixed at $203,589 for fees and $12,493 for disbursements, and ordered the applicants to pay these costs personally rather than out of the estate.

The appellants, estate trustees of the testator's estate, appealed the trial judge's finding that the testator lacked testamentary capacity when executing two wills dated August 16, 2010 and September 8, 2010.

The trial judge found the testator was unaware of the nature and extent of his assets, did not remember persons he might be expected to benefit, and did not understand claims that could be made by excluded persons.

The appellants also sought leave to appeal the costs award, which required the estate trustees personally to pay costs rather than having them borne by the estate.

The Court of Appeal found no palpable errors of fact and upheld the trial judge's findings on capacity and costs.

The applicants, co-estate trustees, brought an application against the respondent, their brother and co-estate trustee, claiming a painting worth $30,000 was an asset of their late father's estate.

The respondent argued he had an oral agreement with his father before his death to keep the painting and pay the estate its appraised value.

The court reviewed extensive email correspondence and found corroborating evidence of the agreement.

The court dismissed the application, finding the painting was not an estate asset provided the respondent paid the $30,000, and noted the parties had spent nearly $500,000 in legal fees fighting over the painting.

The Superior Court of Justice issued a costs endorsement following the dismissal of an action challenging a will.

The defendant, Constance McCron, sought substantial indemnity costs from the plaintiffs.

The plaintiffs argued for costs from the estate or that each party bear their own.

The court applied the modern approach to estate litigation costs, noting that while the plaintiffs had reasonable grounds to question the will's validity (suspicious circumstances, testator's susceptibility), their claim was ultimately statute-barred.

The defendant's request for costs was denied due to her misleading evidence regarding the testator's mental state.

Ultimately, the court ordered that each party bear their own costs.

The appellant, a grandchild of the deceased, appealed the dismissal of her application to remove the named executors and trustees of the deceased's estate.

The executors were the deceased's two sons.

The appellant claimed the executors would not treat her fairly and had breached their fiduciary duties.

The Court of Appeal dismissed the appeal, finding no evidence supporting the appellant's claims.

The court noted that the key property at issue had been sold, the executors had honored the deceased's non-binding request regarding the cottage, and the mere existence of friction between the executors and the appellant's mother did not justify removal.

The deceased was aware of existing tensions but nonetheless named the respondents as executors.