Louis S. Vittas

An application concerning the validity of a will executed by the deceased on May 13, 2022.

The applicant, as estate trustee under a prior will, challenges the validity of the 2022 will on grounds of lack of testamentary capacity and undue influence.

The respondent propounds the 2022 will.

The court found suspicious circumstances sufficient to displace the presumption of validity, including prior findings of undue influence in a related powers of attorney proceeding, significant changes to the will's dispositive provisions, and evidence of cognitive impairment.

However, new evidence presented by the respondent and the deceased's daughter, which had not been tested through cross-examination, created conflicts requiring resolution at trial.

The court directed the matter to proceed to trial.

The appellants, Alex and Maryam Furney, appealed a motion judge's decision granting summary judgment to the respondent, Mohammad Ali Rabbani, for debts owed on promissory notes and a mortgage.

The appellants raised over thirty grounds of appeal, primarily alleging unfairness, errors of law and fact, and an improper costs award.

The Court of Appeal found no reversible error, affirming the motion judge's discretion in refusing an adjournment and her finding that there was no genuine issue for trial.

The appeal was dismissed with costs.

This endorsement addresses the costs following a four-day summary trial where judgment was granted in favour of the plaintiff for breach of lease damages and personal liability against one defendant.

The court applied Rule 57.01 of the Rules of Civil Procedure, considering factors such as the result, counsel experience, complexity, and the importance of issues.

The plaintiff was found substantially successful and awarded costs, calculated at a full indemnity rate for lease damages and a partial indemnity rate for personal liability issues, with a deduction for certain dismissed claims.

The court declined to apportion costs separately between the corporate and individual defendants, finding their interests and defence intertwined, and ordered costs payable jointly and severally.

The defendants brought a motion seeking to dismiss the action for delay and to discharge a construction lien and certificate of action, arguing the lien was registered out of time.

The court dismissed the motion to dismiss for delay, finding the delay was not inordinate, inexcusable, or intentional, and did not cause prejudice.

The court also dismissed the motion to discharge the lien, finding a genuine issue for trial regarding the date the contract was abandoned, which was crucial for determining the timeliness of the lien registration.

Costs were awarded to the plaintiff.

The applicant landlord sought summary judgment for $152,101.29 in rent arrears, claiming the leased premises were larger than initially stated in the 10-year commercial lease.

The respondents, tenants, argued that the landlord was estopped from making the claim due to prior representations and that the claim was statute-barred.

The court dismissed the landlord's motion, finding that the landlord was estopped from pursuing the retroactive claim for arrears and that the claim was statute-barred, as the landlord had confirmed the initial square footage for over nine years of the lease term and failed to exercise its right to re-measure in a timely and reasonable manner.

The plaintiff, Ferro Canada Inc., moved for default judgment against the defendants, York Abatement Inc., Rubben Mendez, and Manuel Hernandez-Morales, who were noted in default.

The plaintiff alleged fraudulent misrepresentation by York Abatement regarding its GST/HST registration, failure to remit collected funds, and misappropriation of these funds by the individual defendants.

The court found that the pleaded facts established fraudulent misrepresentation and grounds to pierce the corporate veil, holding the individual defendants personally liable for their misconduct.

Judgment was granted in favour of the plaintiff for damages and costs.

The plaintiff mortgagee brought a motion for summary judgment seeking payment under two mortgages and possession of the mortgaged property following alleged default.

The defendants argued that the lender failed to advance construction funds in accordance with the financing agreement, causing construction delays, increased costs, and inability to make interest payments.

The court held that the evidentiary record raised multiple factual disputes concerning the lender’s obligations to advance funds, the causes of construction delays and cost overruns, and the parties’ respective responsibilities under the loan agreement.

These issues required a detailed factual assessment that could only be resolved at trial.

The motion for summary judgment was therefore dismissed.