Michael S. Deverett

The succeeding estate trustee and beneficiaries brought a motion against the former estate trustee, Lorali Queripel, for damages due to breach of fiduciary duty, punitive damages, and costs.

Lorali Queripel had failed to comply with multiple court orders to account for the Estate of Betty Shaddock and transfer assets, and had mismanaged estate property.

The court found Lorali Queripel liable for damages totaling $175,147.98 for her breaches, including failure to communicate, account, sell property, and pay expenses.

Punitive damages of $50,000 were awarded due to her egregious conduct and repeated non-compliance with court orders.

Full indemnity costs of $49,601.09 were also awarded against her.

The applicant sought costs of $10,000 on a partial indemnity scale for a motion regarding funds removed from a law firm's trust account.

The respondent sought costs of $74,940.75 on a substantial indemnity scale, claiming success on the motion.

The court found mixed success, as the applicant's motion prompted the return of $68,544.90 to the trust account, but the applicant was unsuccessful on the balance of the motion.

The court made no order as to costs for either the motion or the cross-motion.

The appellant appealed the dismissal of her application to set aside her deceased mother's will, alleging lack of testamentary capacity, suspicious circumstances, and undue influence.

She also sought leave to appeal the partial indemnity costs order made against her.

The Court of Appeal dismissed the appeal regarding the will's validity, finding no reversible error in the application judge's findings that the mother had the requisite capacity and the will was not surrounded by suspicious circumstances or undue influence.

However, the court granted leave to appeal the costs order, set it aside, and ordered that the appellant bear her own costs of the application, while the respondents' costs are payable from the estate, as the grounds raised by the appellant, though unsuccessful, were not frivolous and warranted court scrutiny.

The respondent, Teresa Di Nunzio, brought a motion before the Court of Appeal for Ontario seeking an order for security for costs against the appellant, Lucia Di Nunzio, for both the appeal and the underlying application.

Teresa relied on Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure, arguing the appeal was frivolous and vexatious and Lucia had insufficient assets, or alternatively, that a novel "lack of mutuality of remedy" constituted "other good reason." The court found that while Lucia lacked sufficient assets, the appeal was not frivolous or vexatious.

The court also rejected the novel "lack of mutuality" argument, stating it was essentially a disparity in financial resources and accepting it would unduly broaden the scope of the rule.

The motion was dismissed.

The moving party sought an order requiring the non-party, who was the partner of the unsuccessful applicant in a will challenge, to pay the costs of the application.

The moving party alleged the non-party was a maintainer of the lawsuit and his involvement constituted an abuse of process.

The court dismissed the motion, finding the non-party had a genuine interest in supporting his partner, did not intermeddle improperly, and his conduct did not amount to an abuse of process.

The court also upheld the assertion of litigation privilege over communications between the non-party and the applicant's lawyers.

The appellant sought a declaration of sole ownership of a property based on adverse possession under the Real Property Limitations Act, arguing exclusive possession and payment of expenses for over ten years.

The trial judge found a 65% interest for the appellant and 35% for the respondents, ordering sale.

On appeal, the respondents raised a new issue: the property was registered under the Land Titles Act, which bars adverse possession claims unless the limitation period ran before registration.

The Court of Appeal dismissed the appeal, finding that the Land Titles Act issue was dispositive, as the property was registered in Land Titles at the time of purchase, preventing acquisition of title by adverse possession.

The court also upheld the trial judge's finding that the appellant had not established actual possession for the requisite period under the RPLA due to a verbal agreement, and affirmed the order for sale under the Partition Act.

The appellant, Wen-Chi Tsai, appealed a Superior Court decision dismissing her claim for an interest in property based on unjust enrichment and joint family venture against her former cohabitant, Lucien Dugal (now deceased, represented by his estate trustees).

The Court of Appeal upheld the application judge's findings that there was no unjust enrichment or joint family venture, concluding that the parties maintained separate finances and that any contributions by the appellant were offset by benefits received.

The appeal was dismissed.

The applicant challenged her late mother's will, which disinherited her and her brother, leaving the entire estate to her sister.

The applicant sought to revoke the certificate of appointment and declare the will invalid based on suspicious circumstances, lack of capacity, and undue influence.

She also requested a hybrid trial.

The court dismissed the request for a hybrid trial, finding it disproportionate and unnecessary.

On the merits, the court found the will was properly executed and the mother had testamentary capacity.

The applicant failed to establish suspicious circumstances or undue influence, as the mother had valid reasons for disinheriting the applicant due to a history of estrangement and financial misconduct.

The application was dismissed.

The plaintiff sought sole ownership of a jointly purchased property, where he had resided since 1991 and paid most expenses, arguing adverse possession under the Real Property Limitations Act, or alternatively, proprietary estoppel, unconscionability, or unjust enrichment.

The defendants, co-owners, sought partition and sale.

The court dismissed the plaintiff's claim for sole ownership, finding his possession was consensual and not adverse.

However, the court granted the defendants' request for partition and sale, but ordered an unequal distribution of proceeds (65% to the plaintiff, 35% to the defendants) based on unjust enrichment, recognizing the plaintiff's disproportionate financial contributions over 30 years.

The respondent estate moved for an order for security for costs of the appeal and for an order permitting the release of $500,000 held in a lawyer's trust account.

The court denied security for costs under Rule 61.06(1)(a) but granted it under Rule 61.06(1)(c) for the appeal costs only ($25,000), citing the low prospect of success of the appeal, the appellant's pattern of litigation conduct, and limited financial disclosure.

The motion for the release of the funds from the trust account was dismissed, as the funds were held in place of a certificate of pending litigation and the appeal was still active.

The applicant sought $813,000 from her deceased former common-law spouse's estate, claiming an interest in the proceeds of the sale of his residential property based on unjust enrichment and a joint family venture.

The court found that the parties maintained separate finances and property ownership during their relationship, and the applicant did not suffer a deprivation nor did the deceased receive an enrichment.

The court dismissed the applicant's claims, finding no unjust enrichment and no joint family venture.

The appellant law firm appealed a Small Claims Court decision dismissing its claim against the respondent.

The appellant had sued the respondent for negligent and fraudulent misrepresentation (later characterized as defamation) over a disputed document report the respondent authored under a pseudonym, which the appellant's former client allegedly used to accuse the appellant of forgery.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that there was insufficient evidence of a causal connection between the report and the former client's actions.

The applicants, a mother and her adult daughter, sought dependant relief from the estate of the deceased under the Succession Law Reform Act.

The mother claimed to be the deceased's common-law spouse, and the daughter claimed the deceased demonstrated a settled intention to treat her as a child of his family.

The court dismissed the application, finding insufficient evidence that the mother and the deceased ever cohabited or lived together continuously for three years.

The court also found no settled intention by the deceased to treat the adult daughter as his own child.

The application was dismissed with costs awarded to the respondent estate.

The appellant, a lawyer who acted for a mortgagee in enforcement proceedings, appealed a Small Claims Court judgment that found him jointly and severally liable for $9,000 in punitive damages and $5,750 in costs.

The Divisional Court allowed the appeal, finding that the Deputy Judge erred in law by awarding punitive damages against the lawyer without finding any primary liability, independent actionable wrong, or duty of care owed to the mortgagor.

The judgment against the lawyer was set aside.

The appellant appealed a summary judgment decision granting the respondent approximately $311,000 on a mortgage debt and dismissing the appellant's counter-claim for a refund of payments made.

The appellant had participated in a fraudulent transaction by allowing himself to be put forward as the mortgagor when the true owner could not qualify for a mortgage.

The appellant received $5,000 for his participation and made payments on the mortgage for seven years before it went into default.

The Court of Appeal upheld the summary judgment, finding no error in the motions judge's application of the rules and rejecting the appellant's arguments regarding the unenforceability of the mortgage.

The plaintiff, Concentra Financial Services Association, and the defendant, Kenneth Rawling, brought cross-motions for summary judgment regarding a mortgage in default.

The defendant counterclaimed for a refund of all mortgage payments, alleging the mortgage was fraudulently procured.

The court found that the defendant was a paid participant in the fraudulent scheme and could not claim the mortgage was invalid.

The defence of non est factum was rejected as the defendant knew he was signing a mortgage and failed to read the documents.

The court also determined that the fraudulent misrepresentations by the solicitor, who acted for both parties, did not bind the plaintiff, as the solicitor's actions were in the interest of the fraudsters and the defendant, not the plaintiff.

Summary judgment was granted in favour of the plaintiff, and the defendant's counterclaim was dismissed.

The appellant appealed a trial judgment finding it breached an oral contract to pay a 5% commission on balloon sales to a retail chain.

The appellant argued the trial judge made palpable and overriding errors in fact-finding and improperly relied on discovery evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions were amply supported by the record and the improper admission of discovery evidence caused no substantial wrong.

The respondent's cross-appeal regarding a pre-trial costs order was allowed, as the trial judge lacked authority to alter the motion judge's order.

The Court of Appeal issued a costs endorsement following its decision on the main appeal.

In accordance with the parties' agreement, the court ordered that the costs of the appeal be paid out of the estate of the deceased.

The successful appellant was awarded $46,000, and the respondents were awarded $25,000.

The deceased left a will that expressly disinherited his daughter, stating she had had no communication with him for several years.

The daughter challenged the will, adducing extrinsic evidence that her father's actual motive was racially discriminatory because she had a child with a white man.

The application judge admitted the evidence and set aside the will on public policy grounds.

The Court of Appeal allowed the appeal, holding that third-party extrinsic evidence of a testator's motive is inadmissible when the will is clear and unambiguous.

Furthermore, the court held that the public policy doctrine cannot be used to void an unconditional, private testamentary bequest based on a testator's alleged discriminatory motive, affirming the principle of testamentary freedom.

Following previously released reasons for judgment, the court considered written submissions from counsel regarding damages, pre-judgment interest, and costs.

The court determined that the parties had not been ad idem regarding the originally referenced damage amount and corrected the damages to a lower amount consistent with the evidence and an exhibit accepted as accurate.

The court also fixed pre-judgment interest from the fall of 2006 and reassessed the plaintiff’s costs in light of a prior offer to settle and the factors under the Rules of Civil Procedure.

The earlier judgment was amended to reflect the corrected damages, interest, and a consolidated costs award.