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 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 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.

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.

The plaintiff corporation claimed a 5% commission on sales made by the defendant balloon wholesaler to a major retail chain, alleging an oral agreement was reached after the plaintiff introduced the parties and helped strategize the sales program.

The defendant denied the agreement, arguing the plaintiff had minimal involvement and offering a nominal fee.

The court found that an oral agreement for a 5% commission on gross sales did exist, based on the parties' correspondence, past relationship, and the plaintiff's significant role in securing the account.

The court awarded the plaintiff $350,000 in damages, representing commissions for a reasonable five-year period.

The plaintiff brought a motion seeking extensive discovery relief in a contractual dispute, including permission to create a mirror copy of the defendant’s computer hard drive, disclosure of detailed information regarding the defendant’s electronic document searches, enforcement of alleged undertakings, and permission to contact the defendant’s IT manager.

The court held that the Rules of Civil Procedure require production of relevant documents but do not require a party to disclose the methodology used to search for those documents.

The plaintiff’s request for a mirror copy of the defendant’s hard drive was rejected as speculative and invasive, absent evidence that relevant undisclosed documents existed.

The court also found that the undertakings relied upon by the plaintiff had either been fulfilled or had not been given as alleged, and that contacting the defendant’s IT manager directly would breach the Rules of Professional Conduct because he was involved in the conduct of the litigation.

At a contested status hearing, the defendant sought dismissal of the plaintiff’s action for delay.

The action alleged breach of contract and negligence arising from the defendant’s failure to publish advertisements in telephone directories.

Applying the test from appellate authority, the court considered whether the plaintiff provided an acceptable explanation for the delay and whether the defendant would suffer non‑compensable prejudice if the action proceeded.

The court held that explanations including lack of communication from defence counsel, internal file management failures, and the absence of an external client were not reasonable explanations for over two years of inactivity.

As the plaintiff failed to provide an acceptable explanation for the litigation delay and did not fully establish absence of prejudice, the action was dismissed.