Michael C. Bruder

Following dismissal of an estate application concerning whether funds in a joint bank account formed part of the deceased’s estate, the court addressed costs.

The respondent had successfully rebutted the presumption of resulting trust by establishing that the joint account was intended to operate as a trust benefiting specified beneficiaries rather than the estate.

The court held that no Rule 49 offer engaged substantial indemnity consequences and that partial indemnity costs were appropriate.

Costs were fixed at $21,289.68 inclusive of disbursements and HST.

The court also directed payment from security for costs and permitted a set‑off against trust funds otherwise payable to the applicant.

The estate trustee applied for a declaration that funds in a joint bank account between the deceased and the respondent formed part of the estate.

The respondent argued the account was created with a right of survivorship and that he held the funds to distribute according to the deceased’s instructions to specific beneficiaries.

Applying the presumption of resulting trust from Pecore v. Pecore, the court examined contemporaneous documents, handwritten notes, and surrounding circumstances to determine the deceased’s intention.

The court concluded that the deceased intended to use the joint account as an estate planning tool, creating a trust in which the respondent would distribute funds to the deceased’s granddaughter, alma mater, and son.

The presumption of resulting trust was rebutted and the funds were not estate property.

An estate trustee sought directions regarding interpretation of a will that created conditional gifts of $150,000 to each of the testator’s three sons, contingent upon purchasing real property secured by a mortgage to the estate.

The will also established a residue trust for future grandchildren to be divided ten years after death.

The court considered principles of will interpretation and extrinsic evidence regarding the testator’s intentions as a real estate investor.

The court held that each son must own real property for a cumulative period of ten years for the gift to vest, beginning when the property is acquired, and that the estate must ensure adequate security through mortgage equity before advancing funds.

The court further ruled on related issues concerning repayment on sale, mortgage priority, trust duration, and residual beneficiaries.

The Attorney General of Ontario and the Ontario Provincial Police appealed a motions judge's order refusing to dissolve an injunction against Aboriginal protestors occupying a residential development, and requiring the Attorney General to take carriage of criminal contempt proceedings while reporting back to the court.

The Court of Appeal allowed the appeal in part.

It held that the motions judge erred in refusing to dissolve the injunction after the Ontario government purchased the property and consented to the occupation.

The Court maintained the referral of the contempt matters to the Attorney General, but imposed strict conditions, finding that the motions judge's previous contempt process was fundamentally flawed for denying procedural fairness and improperly interfering with police and prosecutorial discretion.

The Attorney General of Ontario brought a motion to stay an order of a motion judge pending appeal.

The motion judge had refused to dissolve an injunction prohibiting protestors from occupying land, even though the land had been purchased by the Province of Ontario, until criminal contempt proceedings were disposed of.

The Court of Appeal granted a stay of the paragraph continuing the injunction, finding a serious issue as to its validity, irreparable harm to the public interest and land claim negotiations, and that the balance of convenience favoured a stay.

The court declined to stay the paragraph referring the contempt matter to the Attorney General for carriage.

The appellant appealed an order, seeking to compel the respondent to execute a proposed agreement.

The Court of Appeal found that the proposed agreement was not executed by the required date, rendering the proposal expired and null and void.

Consequently, the court held that no purpose would be served in ordering the execution of the agreement and dismissed the appeal as moot.

The appellant challenged a trial judgment finding it liable for an eye injury caused during repair of a heat pump, arguing the injury was not caused by the alleged design defect.

The respondents cross-appealed the finding of contributory negligence for failure to wear safety glasses.

The court held both the appeal and cross-appeal were entirely fact-driven and found no palpable and over-riding error in the trial judge’s acceptance of the plaintiff expert’s evidence on design defect and causation.

The finding of 15 percent contributory negligence was also upheld.

Both the appeal and cross-appeal were dismissed with costs.