Jane E. Sirdevan

The Court of Appeal for Ontario dismissed the appeal concerning the interpretation of a will provision granting an option to purchase a townhouse.

The court upheld the application judge’s finding that the option was properly exercised within the required time and that the will’s terms were sufficiently certain.

The court also rejected arguments regarding the necessity of a separate agreement of purchase and sale and the relevance of the parties’ subsequent conduct.

Costs were awarded as agreed.

The applicant sought the court's advice and direction on whether an enforceable agreement was formed for her to purchase a property from the deceased's estate, as per an option granted in the will.

The will stipulated a 60-day period to enter into an enforceable agreement.

The respondent estate trustee argued that no enforceable agreement was made within this period because a formal written offer was received after 70 days.

The court found that the exchange of email correspondence between the applicant and the respondent within the 60-day period constituted an enforceable agreement, as the will did not require a formal written document.

The court dismissed the respondent's arguments regarding lack of certainty of terms and the assertion that it was merely an agreement to agree, concluding that a meeting of the minds on all essential terms had occurred.

This is a costs endorsement following the dismissal of an appeal.

The respondent, as the successful party, sought costs of $5,739.27.

The appellant argued against any costs award, citing her financial circumstances.

The Court of Appeal, considering the submissions, fixed the respondent's costs, payable by the appellant, at $3,500, all-inclusive.

The appellant, Melissa Bell, appealed a summary judgment dismissing her solicitor's negligence claim against the respondent, Corinne Elizabeth Long.

The claim was found to be statute-barred by the Limitations Act, 2002.

The appellant argued that the claim was not discoverable until later dates and that the limitation period was suspended due to mental incapacity.

The Court of Appeal upheld the motion judge's findings, concluding that the claim was discoverable more than two years before it was commenced and that the appellant failed to provide sufficient medical evidence to establish incapacity under the Act, particularly given her active participation in other litigation.

The appeal was dismissed with costs.

The defendant, Corinne Long, brought a motion for summary judgment seeking dismissal of the plaintiff, Melissa Bell's, action for solicitor's negligence.

Long argued the action was statute-barred by the Limitations Act, 2002.

Bell contended the limitation period was suspended due to incapacity under s. 7 or postponed by discoverability under s. 5.

The court found that Bell had discovered her claim more than two years before commencing the action and failed to provide admissible medical or psychological evidence to rebut the presumption of capacity.

Consequently, the court granted summary judgment, dismissing Bell's action.

The applicant father sought to rectify a Declaration of Trust concerning a 100-acre farm, arguing that he and his deceased son were mistakenly reversed as 'Trustee' and 'Beneficiary' by the drafting lawyer.

The respondent widow, acting as estate trustee, brought a cross-application to uphold a severance of the joint tenancy she executed under a power of attorney before the son's death.

The court applied the Fairmont Hotels test and found a mutual mistake, rectifying the Declaration of Trust to show the father as the beneficiary.

Consequently, the court set aside the severance of the joint tenancy and ordered the land registry rectified to show the father as the sole owner by right of survivorship.

This endorsement concerns the costs award following a professional negligence action brought by the plaintiff, Darren John, against his former lawyer, Norbert Bartels.

The jury found that John failed to prove the standard of care Bartels allegedly breached, leading to the dismissal of the action.

Bartels, as the successful party, sought partial indemnity costs totaling $41,885.85.

The court, applying Rule 57.01 factors and the principle of proportionality under Rule 1.04(1.1), determined that the actual amount in dispute was $19,500, not the $1,000,000 claimed.

Despite Bartels' success and the reasonableness of his counsel's rates, the court reduced the costs award to $18,500, emphasizing that costs must be proportionate to the amount involved and the complexity of the issues, and fair and reasonable to the unsuccessful party.

The court also noted the plaintiff's conduct in prolonging the trial and failing to provide disclosure.

The plaintiff commenced an action against her former legal and financial advisors alleging negligence and breach of fiduciary duty in connection with advice provided during negotiation of a marriage contract.

The defendants brought summary judgment motions asserting that the action was statute‑barred under the Limitations Act, 2002 and constituted an abuse of process because the plaintiff had a statutory remedy under s. 56(4) of the Family Law Act to set aside the marriage contract against her spouse.

The court held the plaintiff failed to rebut the presumption of discoverability and knew or ought to have known of the material facts giving rise to her claims more than two years before commencing the action.

The court further held that attempting to obtain, through damages against advisors, relief that should have been pursued through family law proceedings constituted an abuse of process.

The defendant lawyer brought a motion to set aside a default judgment entered against him in an action alleging negligence and breach of fiduciary duty regarding his role in managing an estate.

The lawyer argued he ignored the statement of claim because he believed it lacked merit.

The court dismissed the motion, finding the lawyer's explanation implausible and noting that his failure to defend showed a careless disregard for the legal process.

The court also found that the prejudice to the plaintiff, due to the death and incapacity of key witnesses, outweighed any prejudice to the defendant.

Following a successful motion striking the plaintiff’s statement of claim as disclosing no reasonable cause of action and as an abuse of process, the court determined the appropriate costs award.

The successful defendant sought substantial indemnity costs based on the plaintiff’s litigation conduct, including extensive discovery questioning seeking privileged information and late service of voluminous materials.

The court held that while the plaintiff’s conduct increased the complexity and time required to prepare the motion, it did not rise to the level of reprehensible, scandalous, or outrageous behaviour necessary to justify substantial indemnity costs.

Applying the principles governing costs under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court fixed costs on a partial indemnity basis.

Costs were awarded in the amount of $20,057 payable by the plaintiff to the successful defendant.

The defendants moved under Rule 21.01 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim alleging the tort of abuse of process.

The plaintiff alleged that the defendants improperly used enforcement proceedings and a court order requiring sale proceeds to be paid into court as leverage to compel payment of money beyond what a judgment creditor was entitled to receive.

The court held that the pleadings failed to establish the essential elements of abuse of process, including a collateral purpose and an overt act separate from the legal proceedings themselves.

The court also found that settlement negotiations were protected by settlement privilege and could not be relied upon as admissions of improper purpose.

Further, the claim for legal fees as “special damages” constituted an impermissible collateral attack on prior costs decisions and related court orders.

The statement of claim was therefore struck as disclosing no reasonable cause of action and as an abuse of process.

The plaintiff purchased a restaurant business and condominium unit.

After closing, she discovered an outstanding municipal work order against the property.

She settled her claim with the title insurer but sued her real estate solicitor for professional negligence, alleging he failed to conduct necessary searches.

The solicitor third-partied the title insurer, claiming a duty to defend and indemnify under an agreement with the Law Society.

The Superior Court of Justice dismissed the plaintiff's action, finding no negligence as the purchasers had insisted on a short closing and waived searches, and the plaintiff failed to prove any damages.

The court granted the third-party claim, holding that the title insurer had a duty to pay the solicitor's defence costs because the true nature of the plaintiff's claim fell within the scope of the title insurance policy.

Following a motion enforcing signed Minutes of Settlement, the court determined costs.

The defendants, who were successful on the motion enforcing the settlement, sought substantial indemnity costs after the self‑represented parties attempted to resile from the settlement reached at mediation.

Applying the principles from Boucher v. Public Accountants Council for the Province of Ontario and Rule 57 of the Rules of Civil Procedure, the court emphasized that costs must be fair and reasonable rather than a strict calculation of hours multiplied by rates.

The court reduced the amounts claimed due to concerns about duplication of work and excessive hours.

Costs were awarded to the successful defendants in reduced amounts.