Lionel J. Tupman

The appellant appealed a judgment interpreting the will of Eleanor Martha Devonport.

The application judge found that a specific bequest of the Hopewell Avenue property to the testator's predeceased son passed to the son's wife pursuant to section 31 of the Succession Law Reform Act (the anti-lapse provision), rather than lapsing into the residue of the estate.

The appellant argued the will showed a contrary intention and that the solicitor's evidence should have been admitted.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the anti-lapse provision or the will's terms.

The court also upheld the occupation rent requirement, finding it was properly raised and calculated.

This endorsement consolidates three applications concerning the guardianship and estate administration of Teresa Opalinski and Alexander Opalinski Sr. The disputes involved allegations of elder abuse, undue influence, and breaches of fiduciary duty among family members.

The court addressed motions for dismissal of a guardianship application (rendered moot by death), a motion for access to Alexander Sr., and an application for the removal of Joanna Opalinski as estate trustee of Teresa's estate.

The court dismissed the guardianship application and the access motion, and granted the application to remove Joanna as estate trustee, directing the appointment of an independent trustee.

This endorsement consolidates three applications concerning the guardianship and estate administration of Teresa Opalinski and Alexander Opalinski Sr. The disputes involved allegations of elder abuse, undue influence, and breaches of fiduciary duty among family members.

The court addressed motions for dismissal of a guardianship application (rendered moot by death), a motion for access to Alexander Sr., and an application for the removal of Joanna Opalinski as estate trustee of Teresa's estate.

The court dismissed the guardianship application and the access motion, and granted the application to remove Joanna as estate trustee, directing the appointment of an independent trustee.

The appellants appealed a trial judgment that found a beneficial interest of 26% in a house for a deceased's estate, based on a purchase money resulting trust.

The appeal addressed whether the trial judge erred in applying the legal requirements for a resulting trust, particularly the "acted as a purchaser" requirement and the onus of proof regarding loans versus gifts.

It also considered the application of the corroboration requirement under s. 13 of the Evidence Act.

The Court of Appeal clarified that the presumption of resulting trust places the onus on the title holder to rebut it by proving the money was a loan or gift, and that the "acted as a purchaser" requirement applies only at the time of advancement.

The court found no reversible error in the trial judge's findings on the resulting trust or the application of s. 13, as the trial judge rejected the loan evidence on credibility grounds.

The appeal was dismissed.

The plaintiff, Solina Bradshaw, sought elevated costs from the defendant, Jack Hougassian, following a successful judgment in an estate matter.

Jack Hougassian sought costs, arguing divided success, and Sona Shea, self-represented, also sought costs.

The court awarded the plaintiff $125,000.00 in all-inclusive costs from Jack Hougassian, finding the plaintiff was the successful party and that Jack's conduct warranted an elevated award.

The court dismissed Jack's and Sona's claims for costs, noting Sona did not meet the criteria for self-represented litigant costs.

The appellant appealed a lower court's decision, challenging the admissibility of a recording and the finding that a joint tenancy had been severed.

The Court of Appeal rejected the argument regarding the recording's inadmissibility, finding it relevant and admissible.

The court also found no basis to interfere with the application judge's decision on joint tenancy severance, as it was a fact-specific inquiry.

The appeal was dismissed, and costs were awarded against the estate, noting the litigation was necessitated by the deceased's actions.

The moving party sought an interim distribution of 25 percent of funds held in trust from the sale of the deceased's residence, pending the resolution of a will challenge.

The funds were held pursuant to a consent order.

The court dismissed the motion, finding no grounds to vary the consent order and concluding that an interim distribution was premature as the estate's liabilities were unknown and an earlier will might exist.

The appellant challenged her father's will and an inter vivos transfer of his house to the respondent, alleging undue influence.

The trial judge rejected the claim.

On appeal, the appellant argued that the relationship between the testator and respondent gave rise to a presumption of undue influence that the respondent failed to rebut.

The Court of Appeal dismissed the appeal, holding that the rebuttable presumption of undue influence applies only to inter vivos transactions, not testamentary gifts.

In testamentary matters, the party attacking the will bears the onus of proving undue influence on a balance of probabilities.

Although the trial judge erred in conflating the two tests, this error did not affect the reasonableness of his conclusion that no undue influence occurred, as his findings were firmly rooted in the evidence.

An appeal concerning the validity of a continuing power of attorney for property executed by an elderly woman in favour of one of her twin sons.

The appellant challenged the validity of the power of attorney on grounds of undue influence and suspicious circumstances, arguing that the respondent son had coerced the grantor into executing the document by restricting her access to funds needed for basic living expenses.

The motion judge upheld the validity of the power of attorney, finding no evidence of undue influence or suspicious circumstances.

The Court of Appeal dismissed the appeal, holding that the transaction was rational and explicable by the parties' relationship, and that the motion judge correctly applied the law.

The applicant sought to invalidate a Continuing Power of Attorney for Property granted by his mother to his brother, alleging lack of capacity and undue influence.

The applicant also sought to replace his brother with a professional interim guardian.

The court found that the mother had the requisite capacity to grant the power of attorney and that there was no evidence of coercion or suspicious circumstances to establish undue influence.

The application to replace the attorney was dismissed, but the brother was ordered to pass his accounts annually to ensure transparency.

BMO Trust Company, as Estate Trustee and Guardian of Property, applied to pass its accounts.

The objector, Lillian Sawchuk, raised numerous objections, leading to a contentious hearing.

Following the judgment which passed the accounts with a minor reduction in BMO's compensation, the court heard submissions on costs.

The total costs claimed exceeded $300,000, disproportionate to the summary nature of the proceeding.

The court applied principles of reasonableness, fairness, proportionality, and access to justice, limiting the costs awarded to BMO, payable by Lillian Sawchuk, to $69,000 plus disbursements, finding that an award of the full amount would be excessive and unreasonable.

No other costs were awarded.

BMO Trust Company applied to pass its accounts for the Estate of Pauline Medynski and the Guardianship of Andrew Medynski.

The adult daughters of the deceased, particularly Lillian Sawchuk, raised numerous objections.

The court found some deficiencies in BMO's administration, including a failure to claim a $3,800 benefit and communication shortcomings.

While most objections were not monetarily quantifiable, the court ordered a modest reduction in BMO's compensation, specifically $3,800 plus a 6% reduction from the remaining compensation sought.

The court emphasized avoiding turning a passing of accounts into a full trial.

Competing motions arose regarding funding the care of an incapable elderly woman under the Substitute Decisions Act.

One child sought to increase a line of credit secured against the incapable person’s Toronto condominium to fund ongoing care, while other siblings sought an order to sell a Florida condominium allegedly jointly owned with one sibling.

The court held that the urgent need to maintain care justified extending the line of credit, while disputes concerning ownership, expenses, occupation rent, and tax consequences relating to the Florida property required further evidentiary determination.

A bifurcated hearing was ordered to resolve those issues before determining whether the Florida property should be sold.

The plaintiff sought leave under Rule 48.04 of the Rules of Civil Procedure to bring a summary judgment motion to dismiss the defendants’ counterclaim after the action had already been set down for trial.

The plaintiff also requested that the defendants’ affidavit evidence be struck because the affiant had not been cross‑examined.

The court declined to strike the affidavit, finding no unjustified refusal to attend for cross‑examination.

Applying principles of proportionality and case management, the court held that a summary judgment motion would not be the most efficient procedure, risked duplicative proceedings and inconsistent factual findings, and could delay the scheduled trial.

Leave to bring the summary judgment motion was therefore refused.

Following a motion in which the defendants sought to dismiss a negligence action against a firefighter as statute‑barred and for failing to disclose a reasonable cause of action, the court dismissed the defendants’ motion and granted the plaintiffs leave to amend their statement of claim.

The plaintiffs subsequently sought costs on a partial indemnity basis.

The defendants argued the plaintiffs should not recover costs because they could have avoided expense by not opposing the motion.

The court rejected this submission, holding that the plaintiffs were entitled to resist the motion and defend their right to challenge the statutory defence.

Costs were awarded to the plaintiffs with reductions for excessive disbursements and to align with reasonable expectations of the unsuccessful party.

Family members and the estate of a deceased driver brought a negligence action arising from a fatal collision with a fire truck driven by a municipal firefighter responding to an emergency.

The defendants moved under Rule 21 to dismiss the claim against the firefighter, relying on statutory immunity under s. 74 of the Fire Prevention and Protection Act, 1997.

The plaintiffs sought leave to amend their statement of claim and argued that the statutory immunity constituted a defence rather than negating the existence of a cause of action.

The court held that the statutory protection for firefighters acting in good faith operates as a defence to be proven by the defendant and does not render the negligence claim legally untenable at the pleading stage.

Because it was not plain and obvious that the claim could not succeed, the motion to dismiss was refused.