Marcia A. Green

Following a successful motion by certain beneficiaries to remove estate counsel, the court determined the costs consequences.

Applying Rule 57 principles governing costs in estate litigation, the court held that costs should generally follow the event and be borne personally by litigants rather than the estate except in narrow circumstances.

The court found the moving parties were entitled to costs on a partial indemnity basis but reduced the claimed fees and disbursements as excessive, including reducing photocopy disbursements.

Costs were fixed at reduced amounts and ordered payable personally by the estate trustees on a joint and several basis.

Certain beneficiaries of an estate brought a motion to remove the estate solicitor and his firm due to a conflict of interest in a contested passing of accounts.

The solicitor had previously acted for one of the estate trustees when she was the deceased's power of attorney for property, and had handled many of the transactions now in dispute.

The court found that the solicitor's extensive involvement in the deceased's affairs and the estate created a potential conflict situation.

The motion was granted and the solicitor's firm was removed as counsel for the estate.

A non‑party brought a motion seeking to set aside or vary an order for directions in estate proceedings concerning the administration of a deceased’s estate.

The moving party asserted standing as an affected person and alternatively through a power of attorney granted by an existing party.

The court held that a power of attorney does not permit the attorney to advocate in court on behalf of the grantor without counsel and that a potential future successor to an estate beneficiary does not qualify as an “affected person” under Rule 37.14(1).

The court further concluded that the moving party had no financial interest in the estate and possessed none of the documents referenced in the order for directions.

The motion was dismissed for lack of standing and the responding party’s cross‑motion to strike the motion was granted, with costs awarded against the moving party.

Les requérants demandaient le recouvrement de dépens à la suite d’un litige relatif à la vente d’un bien‑fonds appartenant à une fondation.

Dans une requête antérieure, ils s’étaient opposés à la vente du bien-fonds et avaient été déboutés, la cour concluant qu’ils n’avaient pas respecté les obligations du vendeur prévues à la convention d’achat‑vente.

La cour a conclu que leur opposition infructueuse à la conclusion de la vente avait provoqué le litige et que leur conduite ne justifiait pas l’octroi de dépens en leur faveur.

Le recouvrement des dépens demandé par les requérants a donc été rejeté.

La motion incidente et toute compensation des dépens ont également été rejetées, sans ordonnance de dépens en faveur des intimés.

The respondents in the underlying proceeding brought a motion seeking recovery of $15,159.17 in costs allegedly incurred in a prior vendor–purchaser motion.

The court held that the relief sought fell outside the scope and jurisdiction of the files in which the motion was brought.

The evidence showed that the moving parties had resigned as directors of the foundation and therefore lacked authority to retain counsel or act on behalf of the foundation in the earlier proceeding.

Applying rule 57.01(2) of the Rules of Civil Procedure, the court declined to award costs to the moving parties and rejected their claim for recovery of those costs.

The motion was dismissed without costs.

The court was asked to determine the amount of debts owed by a religious foundation to various individuals who allegedly advanced funds used to purchase a church property and whether those debts should be paid from the proceeds of the property’s sale held in trust.

The moving parties asserted numerous loans, while the opposing faction disputed several claims and challenged the sufficiency of the evidence.

Applying principles relating to burden of proof, credibility in undocumented loan transactions, and adverse inferences for missing evidence, the court reviewed each claimed advance individually.

The court accepted certain claims supported by documentary evidence, including mortgage-related advances and payments made to satisfy obligations to a vendor mortgagee.

Other claims were rejected where evidence was inconsistent, unsupported, or contradicted by banking records.

The court ordered payment of specific sums from the sale proceeds to certain creditors, including the Kabelu parties and two additional lenders.

The court was asked to determine the amount of debts owed by a religious foundation to various individuals who allegedly advanced funds used to purchase a church property and whether those debts should be paid from the proceeds of the property’s sale held in trust.

The moving parties asserted numerous loans, while the opposing faction disputed several claims and challenged the sufficiency of the evidence.

Applying principles relating to burden of proof, credibility in undocumented loan transactions, and adverse inferences for missing evidence, the court reviewed each claimed advance individually.

The court accepted certain claims supported by documentary evidence, including mortgage-related advances and payments made to satisfy obligations to a vendor mortgagee.

Other claims were rejected where evidence was inconsistent, unsupported, or contradicted by banking records.

The court ordered payment of specific sums from the sale proceeds to certain creditors, including the Kabelu parties and two additional lenders.

Parties disputed the debts owed by a foundation in connection with funds held from the sale of a building.

The court determined the specific creditors and amounts owing, including debts related to a second mortgage, institutional loans, and private advances.

The court directed that the purchaser of the property could appear within seven days to show cause why the identified debts should not be paid immediately from trust funds held by a law firm or the court registrar.

Absent such notice, the trustee or registrar was ordered to distribute the specified amounts to the named creditors, with any remaining balance payable to the foundation.

Following a successful application determining that the respondents could not unilaterally revoke their resignations as directors of a charitable foundation, the applicants sought costs.

The court found the respondents' conduct in attempting to retake control of the foundation and removing its property to be unreasonable.

The court awarded costs to the applicants on a partial indemnity scale, fixed at $65,000 plus HST and $7,000 in disbursements.

The applicants sought declarations regarding the corporate governance of a non-share capital charitable corporation after two directors, who were also pastors, resigned and later attempted to revoke their resignations.

The court held that under the Canada Corporations Act and the corporation's by-laws, a director's resignation becomes effective when irrevocably sent to the corporation.

The court further held that a director cannot unilaterally revoke a resignation once it has been received and accepted by the board.

Consequently, the respondents were no longer directors and had no authority to act on behalf of the corporation.