Michael W. Kerr

This decision addresses the issue of costs following the dismissal of an application brought by beneficiaries against estate trustees.

The court reaffirmed its earlier decision to award costs to the respondent estate, applying the "loser pay" principle in estate litigation.

The court found the applicant's claims lacked merit and criticized his conduct throughout the litigation, including inefficient pursuit of claims, numerous adjournments, and groundless allegations of misconduct.

The applicant's plea of impecuniosity was rejected due to a lack of supporting evidence.

The court awarded substantial indemnity costs of $155,000 to the respondents, to be offset against future distributions to the applicant from the estate.

The applicant husband brought an application seeking directions on the interpretation of his deceased wife's will, the removal of the estate's executors, and an immediate distribution of $652,705.35.

He argued that the will's treatment of his life interest in one-quarter of the residue created a partial intestacy upon his death.

The court rejected this interpretation, applying the golden rule of construction to find that the testatrix intended the remainder of his share to be divided among the other three shares.

The court also dismissed the claims for immediate distribution and removal of the executors, finding no maladministration and noting that the estate's delayed income was due to a separate foreign estate not controlled by the executors.

This case involves a dispute among seven siblings over the equal distribution of their deceased parents' assets, held in part through an estate freeze vehicle, 1280584 Ontario Inc. The applicants sought an order for production of additional financial records or the appointment of an inspector under the Ontario Business Corporations Act, arguing that the respondent's accounting was inaccurate and incomplete.

The court found deep distrust and obstruction from the respondents, warranting independent review.

The appellant appealed a decision removing the respondent as estate trustee, passing over the appellant as alternate estate trustee, and appointing a trust company as the sole succeeding estate trustee.

The appellant argued that the respondent had already been deemed to have renounced her appointment and that he should not have been passed over.

The Court of Appeal dismissed the appeal, finding that the respondent had intermeddled in the estate, meaning she could only be relieved of her duties by court order.

The Court also upheld the decision to pass over the appellant due to his strong animosity towards the respondent, which risked creating a deadlock in the administration of the estate's corporate assets.

An elector appealed a decision by the Halton District School Board Compliance Audit Committee declining to order a compliance audit of a school trustee candidate's election campaign finances.

The elector alleged that the candidate had made false, misleading, and untrue statements in her Form 4 Financial Statement, specifically regarding unreported contributions and underreported campaign expenses.

The court conducted a de novo hearing and applied the "reasonable grounds" test, requiring an objective belief based on compelling and credible information raising reasonable probability of a breach.

The court found that the elector's allegations were based on conjecture, speculation, and circumstantial evidence insufficient to meet the threshold.

The appeal was dismissed and no compliance audit was ordered.

In the ongoing administration of the estate of John Kaptyn, the estate trustees (Henry and Simon Kaptyn) and beneficiaries brought multiple motions due to their inability to agree on routine matters.

Henry sought the return of retained earnings from a corporation, which the court dismissed as res judicata and an abuse of process due to a prior consent judgment.

The court also addressed the timing of a $1 million compensation payment and directed the parties to confer and agree on the form of indemnification and share pledge agreements required for the distribution of estate assets to the grandchildren, warning of costs consequences for unreasonable delay.

An applicant appealed a decision by the Halton District School Board Compliance Audit Committee that rejected her application for a compliance audit of a school trustee candidate's election campaign finances.

The applicant alleged the candidate had filed false and misleading financial statements.

The court found that the Compliance Audit Committee failed to establish adequate administrative procedures as mandated by statute, failed to provide fair notice to the applicant regarding the hearing process, and failed to create a transparent and complete record of its proceedings.

The court determined that procedural fairness had been compromised and ordered a de novo hearing on appeal, allowing the applicant to present additional evidence that was not before the original committee.

The appellants appealed a summary judgment decision awarding the respondent damages for wrongful dismissal, specifically challenging the award of a bonus during the 19-month notice period.

The appellants argued the respondent was ineligible for a bonus because he was not actively employed on December 31st of the claim year.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the active employment precondition was not incorporated into the employment contract or brought to the respondent's attention.

The court also upheld the motion judge's calculation of the bonus and her conclusion that there was no genuine issue requiring a trial.

The appellant appealed the dismissal of her claims against her former solicitor and a charitable foundation regarding the transfer of her home with a retained life estate.

At trial, she argued non est factum and breach of fiduciary duty, both of which were dismissed based on credibility findings.

On appeal, she raised a new argument of solicitor negligence regarding ongoing property expenses, which the court declined to hear as it was not pleaded at trial.

The Court of Appeal upheld the trial judge's findings and the award of substantial indemnity costs, dismissing the appeal.

Following the release of reasons for judgment in a wrongful dismissal appeal, the appellant made further written submissions arguing that his damages award of $286,000 should not be subject to the duty to mitigate.

The Court of Appeal agreed, finding that a clause in the employment contract requiring a lump-sum payment shortly after termination amounted to a waiver by the employer of any obligation on the part of the employee to mitigate.

The judgment was amended to award the appellant damages equal to two years' salary without a duty to mitigate, and costs were fixed on a substantial indemnity basis.

The appellant was employed by the respondent for 17 years and had an employment contract providing for two years' salary upon termination.

The respondent attempted to unilaterally amend this provision to a maximum of 30 weeks' pay, giving two years' notice of the change.

The appellant explicitly rejected the new term but continued to work.

After two years, the respondent informed the appellant that the new provision was in effect and that he had no job if he refused to accept it.

The Court of Appeal held that the respondent's actions constituted a termination.

Because the respondent permitted the appellant to continue working despite his clear rejection of the new terms, the respondent was deemed to have acquiesced to the original contract.

The appellant was awarded damages based on the original two-year termination provision, less mitigated earnings.

The respondent employee accepted a severance package and signed a full and final release of all claims against the applicant employers.

She subsequently filed a complaint under the Pay Equity Act.

The Pay Equity Hearings Tribunal held that the release did not bar her complaint because the employers had not complied with the Act prior to the release.

On judicial review, the Divisional Court quashed the Tribunal's decision, holding that parties may contract out of the Pay Equity Act when settling a claim, and the unequivocal release barred the employee's complaint.

The applicant union sought judicial review of an arbitrator's award that denied the Ottawa local union a provincially negotiated increase for room and board under the collective agreement.

The Divisional Court found that the arbitrator interpreted the Memorandum of Settlement contrary to its plain words, which granted the increase unless the local union had already negotiated an increase.

Since the Ottawa local had not negotiated an increase, its members were entitled to the provincial increase.

The court held the arbitrator's interpretation was patently unreasonable and quashed the award.