Miriam Vale Peters

Following an appeal in an estate matter, the respondent sought costs of $43,630.71 on a substantial indemnity basis, payable immediately rather than from the appellant's share of the estate.

The Divisional Court found no reprehensible conduct to justify substantial indemnity costs and fixed costs at $28,000 on a partial indemnity basis.

The court ordered the costs to be paid forthwith due to uncertainty regarding the timing of the estate's distribution.

The appellant appealed an order approving the passing of accounts by the estate trustee of their late brother's estate.

The appellant argued the audit judge erred in the standard of recordkeeping required, specifically regarding the absence of written receipts for some expenses.

The Divisional Court dismissed the appeal, finding the audit judge correctly applied the standard of care of a person of ordinary prudence and reasonably accepted the trustee's sworn explanations and corroborating evidence.

The court also upheld the audit judge's decisions regarding the distribution of artwork, the refusal to order a trial of late-raised issues, and denied leave to appeal the costs order.

The parties were unable to agree on costs following a motion and cross-motion in an estate litigation matter.

The plaintiff sought partial indemnity costs of $26,625.06, while the defendant sought substantial indemnity costs of $25,038.54 or partial indemnity costs of $18,567.56.

The court found that the defendant was the more successful party, having prevailed on the appointment of an estate trustee during litigation and reimbursement of expenses.

The court rejected the plaintiff's request to reserve costs to the trial judge and fixed costs at $10,000 payable by the plaintiff to the defendant.

The plaintiff challenged his late mother's will, alleging lack of testamentary capacity and undue influence by the defendant.

The plaintiff moved to appoint his ex-wife as the Estate Trustee During Litigation (ETDL) with powers to sell the deceased's property, while the defendant cross-moved to remove the plaintiff's notices of objection and for reimbursement of estate expenses.

The court maintained the primary notice of objection, appointed a neutral retired lawyer as ETDL with limited powers to preserve the property pending the will challenge, and ordered the estate to reimburse the defendant for expenses incurred.

This case involved motions to interpret a trust declaration concerning the deceased's house, executed the day before her death.

The declaration transferred title to two sons as joint tenants, acknowledging the deceased or her estate as the beneficial owner.

The dispute centered on whether the house sale proceeds should be distributed equally among heirs as per the trust (respondents' view) or form part of the estate and be distributed according to the will (applicant's view), which contained a specific condition for one heir.

The court upheld the trust's validity, rejecting arguments of it being a testamentary disposition or a sham.

However, it ruled that the proceeds belonged to the estate and must be distributed according to the will, as the trust declaration did not specify an alternative distribution method.

This is a costs endorsement following a successful appeal by 2651171 Ontario Inc. The Court of Appeal for Ontario determined the quantum of costs for the motions for summary judgment and the action.

The appellant sought substantial indemnity costs based on an offer to settle made under Rule 49.10(1).

The respondent, Patrick Brey, objected to the quantum and argued for a reduction due to the appellant's unproven allegations of fraud.

The court found the appellant prima facie entitled to substantial indemnity costs due to the offer to settle, but ordered a reduction in the total amount awarded due to the unfounded allegations of fraudulent misrepresentation made by the appellant, emphasizing that such serious allegations require strict pleading and proof.

This appeal concerned the interpretation of a real estate agreement's requisition deadline for off-title objections, specifically regarding the lawful use of a property described as a fourplex.

The appellant buyer raised timely objections about the property's legal use, which the respondent seller refused to address, leading to the transaction's failure.

The motion judge had erred by misinterpreting the deadline provision, deeming the objections untimely.

The Court of Appeal found the objections were timely and valid, as the property's lawful use as a fourplex could not be confirmed.

The appeal was allowed, the lower court's judgment set aside, and the appellant was granted the return of its deposit and damages.

Elke Kasanda, as Estate Trustee, sought directions for a trial of various issues, including the removal of co-trustees Helmut Sartarelli and D. Scott Murray, and disclosure of legal records from Murray concerning the deceased's estate planning and business sale.

The court dismissed the motion for disclosure of Murray's records, citing solicitor-client privilege and lack of evidence for waiver or exception.

The court adjourned the balance of the motion for directions, granting Elke leave to bring a separate motion to remove Helmut and Murray as Estate trustees, noting that such a motion does not require the same evidentiary threshold as a motion for directions under Rule 75.06.

Mediation was ordered, with costs to be borne by the Estate.

The moving party sought leave to appeal the order of Somji J. dated April 27, 2021.

The Divisional Court dismissed the motion for leave to appeal.

As no costs outlines were filed, the court made no order as to costs.

The applicant sought to enforce a right of first refusal to purchase a jointly owned property at its 2019 fair market value.

The respondent argued the right was never validly exercised and sought an immediate sale under the Partition Act.

The court reserved its decision on the merits of the right of first refusal but ordered the immediate sale of the property at current fair market value, noting that damages would be an adequate remedy if a breach of contract occurred.

The applicant estate trustee sought costs following a successful application to pass her accounts.

The respondent beneficiaries had raised over 300 objections, abandoning most at the hearing, and maintained unfounded allegations of theft and fraud against the trustee.

The court found the respondents' conduct reprehensible and ordered them to personally pay the trustee's costs on a substantial indemnity basis, fixed at $325,000.

The plaintiff, through her litigation guardian, sought the proceeds from the sale of a property she had previously transferred to her late son for nominal consideration.

She argued the transfer was subject to a resulting trust or was unconscionably procured.

The defendants, the son's estate trustees, argued it was a valid inter vivos gift.

The court dismissed the motion, finding the evidence of the plaintiff's solicitor clearly established she intended to gift the property to her son and fully appreciated the nature and effect of the transaction.

The plaintiff, 2651171 Ontario Ltd. ("265"), sued the defendant Patrick Brey ("Brey") and listing agent Grapevine Realty for breach of contract and negligent misrepresentation after a real estate purchase agreement for a fourplex failed to close.

Brey counterclaimed for damages and cross-claimed against Grapevine, also initiating a third-party claim against his agent, Ryan Rogers.

Both 265 and Brey brought duelling motions for summary judgment. 265 sought the return of its $25,000 deposit and costs, and dismissal of Brey's counterclaim.

Brey sought to keep the deposit and damages.

The court dismissed 265's claims, finding that its objection regarding the property's lawful use as a fourplex was not raised within the contractual deadline and did not go to the root of title.

The court also found that 265's claim for fraudulent misrepresentation was not properly pleaded.

Brey's motion for summary judgment and his counterclaim were granted.

Brey was awarded damages for direct loss on the sale and related expenses, including legal fees and interest on lost investment income, totaling $52,216.65, with the $25,000 deposit applied towards these damages.

On a contested passing of accounts arising from a complex cross-border intestacy involving real property, artworks, and personal property located in Mexico, the court held that an estate trustee is not required to produce a written receipt for every expense if accurate accounts, sworn explanations, and corroborating records establish that the disbursements were reasonably incurred for the estate’s benefit.

Applying the ordinary prudence and diligence standard from trustee accounting jurisprudence, the court rejected extensive objections alleging mismanagement, misappropriation, and failure to follow the wishes of the majority beneficiaries.

Most challenged expenses, including memorial costs, travel, staffing, legal fees, and marketing assistance, were approved, subject to limited disallowances and correction of a $50,000 accounting error.

Trustee compensation was fixed at $200,000 exclusive of HST using the tariff cross-checked against the five established compensation factors.

The appellant contractor brought an action for breach of contract after the respondent condominium corporations exercised a contractual termination clause following months during which the respondents knowingly misled the appellant into believing the agreement would not be terminated.

The majority held that the duty of honest performance, as formulated in Bhasin v. Hrynew, precludes active deception and applies to the exercise of all contractual rights, including termination rights; the respondents breached that duty by failing to correct the false impression they had created, which was directly linked to performance of the contract.

A concurring minority agreed on liability but differed on the measure of damages, holding that the duty of honest performance vindicates the reliance interest rather than the expectation interest.

The dissent would have dismissed the appeal on the ground that the respondents' conduct did not materially contribute to the appellant's mistaken belief and did not constitute the active dishonesty required for a breach of the duty of honest performance.

The appeal was allowed and the trial judge's award of damages was reinstated.

The plaintiff brought a motion for leave to issue and register a Certificate of Pending Litigation (CPL) against three properties owned by the defendant, who was the common-law spouse of the plaintiff's deceased father.

The plaintiff challenged the validity of his father's holographic will, alleging lack of capacity and undue influence.

The court dismissed the motion, finding the plaintiff's evidence weak and concluding there was no triable issue regarding the properties.

Furthermore, the court held that the equities did not favour granting a CPL, as an existing non-dissipation order provided adequate security and damages would be a suitable alternative remedy.

Following the dismissal of the appellant's appeal, the respondents sought full indemnity costs, relying on an unresponded settlement offer and rule 57.01 of the Rules of Civil Procedure.

The Court of Appeal declined to award full indemnity costs, noting that costs generally follow the event on a partial indemnity basis unless there is sanctionable conduct during the appeal.

Finding no such conduct, the court awarded the respondents partial indemnity costs of $11,000 all-inclusive.

The appellant appealed the dismissal of his application for a declaration that he owned a two-thirds share of a property.

The property was originally owned by his mother-in-law, who transferred it to herself and her daughter (the appellant's late wife) as joint tenants.

The appellant argued the property was a matrimonial home and the joint tenancy was severed upon his wife's death.

The Court of Appeal dismissed the appeal, finding that the transfer raised a presumption of resulting trust which was not rebutted.

Because the daughter held the property on resulting trust, she did not have an interest in the property under the Family Law Act, precluding it from being a matrimonial home.

The appellant appealed a Master's decision appointing an Estate Trustee During Litigation (ETDL) to manage an intestate estate.

The appellant argued the Master exceeded her jurisdiction by effectively removing her as administrator and authorizing the ETDL to distribute the residue of the estate.

The Divisional Court dismissed the appeal, finding no error in the Master's decision to appoint an ETDL due to the adversarial relationship between the parties.

However, the court noted that certain provisions of the resulting order exceeded the Master's jurisdiction and directed the parties to amend the order or return to the Master.

The applicant sought a declaration of entitlement to a two-thirds share of his deceased mother-in-law's home, arguing that a previous joint tenancy transfer to his late wife severed the tenancy and made it a matrimonial home.

The respondents, the deceased's grandchildren, argued the transfer was a resulting trust.

The court found the applicant failed to rebut the presumption of resulting trust arising from the parent-to-child transfer.

The application was dismissed, and the respondents were awarded partial indemnity costs, reduced due to unnecessary separate representation.