Vusumzi Msi

The Court of Appeal for Ontario issued a costs endorsement following its dismissal of an appeal concerning a will dispute.

The respondent, Gayle Shannon, sought substantial indemnity costs.

The court found it appropriate to award enhanced costs due to the appellants' unsubstantiated allegations of misconduct and ordered costs payable personally by the appellants, as the appeal was primarily for their personal benefit rather than the estate's.

The court fixed the respondent's costs at $80,000 all-inclusive, estimating substantial indemnity costs as 80% of full indemnity.

The appellants appealed a motion judge's order striking their statement of defence and counterclaim due to their persistent failure to answer undertakings, produce relevant documents, and comply with multiple court orders.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision.

The court found no reversible error, emphasizing the fundamental importance of disclosure, the prejudice caused by non-compliance, and the court's authority to impose proportionate remedies, including striking pleadings, for flagrant disregard of court process and orders.

The appellants, estate trustees of Andrew Hrabovsky's estate, appealed a lower court order that set aside the testator's 2007 will due to lack of testamentary capacity and restored his 2006 will.

The appeal raised two main issues: whether the respondent's (Gayle Shannon) challenge to the 2007 will was statute-barred by the Limitations Act, and whether the application judge erred in finding a lack of testamentary capacity.

The appellants sought to introduce fresh evidence on both grounds.

The Court of Appeal dismissed the appellants' motion to adduce fresh evidence, finding a lack of reasonable diligence and that the evidence would not be conclusive.

The court also dismissed the appeal on its merits, upholding the application judge's findings regarding testamentary capacity and the limitations period.

The 2006 will was confirmed as the true last will, and the certificate of appointment related to the 2007 will was set aside.

The plaintiffs brought a motion for a Certificate of Pending Litigation (CPL) over a Scarborough property owned by the defendants, alleging that funds advanced as unsecured debt for a different development were diverted to the Scarborough property, creating a constructive trust.

The court dismissed the motion, finding the plaintiffs failed to establish a triable issue regarding an interest in land.

The court also found that damages would be an adequate remedy and that the balance of convenience favoured maintaining the status quo to avoid disrupting the defendants' ongoing redevelopment efforts.

This decision addresses the costs arising from a motion to set aside a default judgment.

The plaintiffs sought costs on a substantial indemnity basis, while the defendants argued for partial indemnity.

The court found no conduct warranting a punitive costs award and therefore awarded costs on a partial indemnity basis, reducing the plaintiffs' claim for redundancies.

The final award was $21,000, all inclusive.

Purchasers appealed a motion judge's dismissal of their action for specific performance of an Agreement of Purchase and Sale.

The motion judge had determined that the purchasers failed to deliver the required deposit within the contractually specified 24-hour timeframe, rendering the agreement void.

The Court of Appeal found that the motion judge erred in drawing an inference that a personal cheque provided by the purchasers was not negotiable based solely on a bank statement showing insufficient funds at that moment.

The court held that the evidence was insufficient to support such an inference, particularly given that the purchasers demonstrated financial capacity by providing a bank draft within two days.

The appeal was allowed, the dismissal order was set aside, and the action was restored to the trial list.

The defendants moved for summary judgment to dismiss the plaintiff's claim for unjust enrichment and constructive trust related to unpaid construction work.

The court found that a contract existed between the parties and that the Construction Lien Act provided a comprehensive statutory scheme, both constituting juristic reasons for the alleged enrichment.

The court rejected the plaintiff's argument that a "quasi-domestic relationship" between the parties negated these juristic reasons.

Consequently, the plaintiff's action was dismissed.

The plaintiffs brought motions to continue an action against the estate of a deceased defendant, to amend their statement of claim, and related procedural relief.

The court considered the interaction between Rules 10.02 and 11.02 of the Rules of Civil Procedure concerning continuation of proceedings where a party has died.

Finding that the deceased’s estate had an interest in the proceeding and that the named executor had not taken formal steps to administer the estate, the court exercised discretion to allow the action to continue against the estate without requiring probate or formal continuation procedures.

The court further addressed scheduling and priority issues between a Rule 21 motion to determine a question of law and a motion to amend pleadings.

The action was ordered to continue against the estate and related motions were adjourned to be heard together at a later date.

The insurer appealed from a declaration that it owed a duty to defend and indemnify insured parents sued in negligence for allegedly failing to prevent their daughter's bullying of another student.

The Court of Appeal held that the negligence claim was properly pleaded and was not derivative of the intentional tort claim against the daughter.

However, the court found that the policy exclusion for failure to take steps to prevent physical, psychological or emotional abuse, molestation or harassment was unambiguous and squarely captured the pleaded failures to investigate, remedy, discipline, and prevent the harassment.

The insurer therefore had no duty to defend or indemnify in the underlying action.

The plaintiffs moved for summary judgment seeking a declaration that the defendant insurance broker held $475,000 in trust for them.

The funds had been wired by the plaintiffs in support of an application to establish a captive insurance company, but were returned to the defendant after the application failed.

The defendant attempted to retain the funds as an equitable set-off against the substantial debts of a third-party company, mistakenly believing the funds belonged to that third party.

The court found that the funds belonged solely to the plaintiffs and that the defendant failed to establish any basis for equitable set-off.

The motion was granted and the funds were ordered returned.

The appellant, a utility bill auditing company, appealed a Small Claims Court decision dismissing its claim for unpaid fees and granting the respondent's counterclaim for overpayment.

The parties had a contract where the appellant would receive 50% of savings from implemented recommendations.

The trial judge found the appellant breached implied terms to suggest multiple suppliers and provide ongoing market disclosure.

On appeal, the Divisional Court held the trial judge erred in law by implying terms that were not obvious or necessary for business efficacy, especially given an entire agreement clause.

The court also found the trial judge erred in interpreting the contract's definition of savings by deducting regulated transportation charges.

The appeal was allowed, and the respondent was ordered to pay the outstanding fees.

Following a prior declaration that the insurer had a duty to defend and indemnify under a comprehensive homeowners policy, the court determined the quantum of costs and reimbursement payable.

The applicants were entitled to full reimbursement of solicitor's accounts for defending the underlying action, subject to deductions for work performed before they became potential personal defendants and for apportionment issues involving another family member.

The court also fixed partial indemnity costs of the insurance application after reducing the hours claimed.

A total award of $20,138.94 was ordered payable within 10 days.

Parents sought a declaration that their homeowner’s insurer had a duty to defend and indemnify them in an action alleging they negligently failed to prevent or address bullying committed by their minor child.

The insurer denied coverage relying on policy exclusions for intentional acts and for failure to prevent abuse or harassment.

The court held that the negligence claims against the parents were distinct from the intentional tort allegations against the child and were not merely derivative.

Applying principles governing duty to defend and interpreting exclusion clauses narrowly, the court found the policy language did not clearly exclude negligent failure to prevent harassment.

The insurer was therefore obligated to defend and indemnify the parents.

Following a trial in which the plaintiff’s claims were dismissed, the successful defendant sought an award of costs.

The court considered the discretion under s. 131 of the Courts of Justice Act and the principles in rule 57 of the Rules of Civil Procedure.

The court noted the unsuccessful plaintiff had advanced serious allegations of fraud and dishonesty that were unsupported by credible evidence and were not put to the defendant in cross-examination.

Although such allegations can justify substantial indemnity costs, the court also considered the plaintiff’s modest means and the overall fairness of the award.

Costs were fixed including disbursements and partial indemnity fees.

The plaintiff brought a civil action seeking damages for negligent police investigation and malicious prosecution following his arrest for criminal harassment and breach of probation.

Although he had been acquitted of the criminal charges, he alleged that police officers lacked reasonable and probable grounds and that family members knowingly provided false information leading to the charges.

The court held that the police investigation met the applicable standard of care and that the officers had reasonable and probable grounds to arrest and charge the plaintiff.

The evidence did not establish malice by the police or that the family members initiated or continued the prosecution through false information.

The plaintiff also failed to prove damages through medical or other evidence.

The appellant appealed a decision approving the passing of accounts by the respondent, his brother and the estate trustee of their late father's estate.

The appellant argued that the application judge erred by not ordering a trial of an issue regarding a forgiven promissory note and the respondent's claim for compensation under the Substitute Decisions Act.

The Divisional Court dismissed the appeal, finding that the application judge had ample evidence to conclude a trial was unnecessary and made no error in principle in approving the compensation.

The appellants appealed an order dismissing their motion under the Solicitors Act to refer six prior, fully paid accounts rendered by the respondent solicitors for assessment.

The Court of Appeal first determined it had jurisdiction, finding the motion judge's order was a final disposition.

On the merits, the Court found no basis to interfere with the motion judge's discretionary finding that there were no 'special circumstances' under s. 11 of the Solicitors Act to justify assessing accounts paid years earlier by other parties.

The appeal was dismissed.

The appellants appealed the judgment of the motions judge, arguing that the judge erred in refusing an adjournment and in reaching his legal conclusion.

The Court of Appeal found no error in principle in the exercise of the motions judge's discretion to refuse the adjournment, nor any reason to interfere with the legal conclusion.

The appeal was dismissed with costs.

The applicants sought leave to appeal a decision of the Ontario Municipal Board denying their request for consent to grant an easement over a neighbouring property to access utility services for their landlocked property.

The Board had determined that only the owner of the servient tenement could apply for such consent under s. 53(1) of the Planning Act.

The Divisional Court found no reason to doubt the correctness of the Board's decision that the dominant tenement owners did not constitute the 'owner' of the servient tenement for the purpose of the Act, and denied leave to appeal.

The appellants appealed a decision regarding their right to an electricity connection under s. 28 of the Electricity Act.

The Court of Appeal dismissed the appeal, finding that the appellants do not have an unqualified right to connection because their property can only be accessed over a third party's property and does not lie 'along any of the lines of the distribution system'.

The court held that Toronto Hydro's conditions of service requiring easements are reasonable and fall within its regulatory scheme.