Morris J. Holervich

Following the intestate death of the deceased, his common-law spouse and children disputed the distribution of his estate.

The children claimed their share as beneficiaries, while the spouse argued the children had gifted their shares to her or, alternatively, that she was entitled to dependant support.

The court found that the children had made a valid inter vivos gift of the family home to the spouse, but not of the deceased's personal property or RRSPs.

The court also awarded the spouse dependant support under the Succession Law Reform Act, fixed at 50% of the deceased's personal property, with the residue to be shared equally among the children.

Following the dismissal of an application for a vesting order regarding a 25% interest in a home, the court determined the issue of costs.

The respondents sought substantial indemnity costs of $9,000.57, while the applicant argued costs should be paid from the estates or not at all.

Applying the modern approach to estate litigation costs, the court held that the 'loser pays' principle applied, as the litigation did not arise from the testators' actions or to ensure proper administration.

The applicant was ordered to pay the respondents' costs on a partial indemnity basis, fixed at $4,750 plus disbursements and HST.

The plaintiff builder brought an action seeking payment for amounts allegedly owing under a residential construction contract.

The defendants’ statement of defence had previously been struck and the counterclaim dismissed, resulting in an undefended trial proceeding only against one defendant after the other declared bankruptcy.

Evidence established the contractual terms, invoices issued, and credits for payments already made to the plaintiff and third parties.

The court accepted the plaintiff’s evidence and found the outstanding balance owing under the contract to be $206,910.74.

Judgment was granted for that amount with prejudgment interest and costs.

The applicant, an estate trustee and beneficiary of a 25% interest in a home, applied for an order vesting his interest or compelling the respondent estate trustees to sell the home.

The home was subject to a life interest granted to another beneficiary under a related estate.

The respondent estate trustees relied on their discretionary power under the wills to postpone the sale of the property.

The court dismissed the application, applying the Court of Appeal's decision in Di Michele, holding that the estate trustees' power to postpone the sale ousted the three-year vesting rule under section 9 of the Estates Administration Act, and their decision to allow the life interest to continue was a valid exercise of discretion.

Following a trial concerning a passing of accounts relating to the estate of a deceased person, the successful objector sought over $87,000 in costs on a full indemnity basis.

The court emphasized that costs are discretionary and guided by proportionality under Rule 57.01 of the Rules of Civil Procedure.

Although the objector had succeeded in requiring repayment of $10,000 and a reduction in compensation claimed by the estate trustee, the court found the requested costs grossly disproportionate to the amounts at issue and the manner in which the litigation was conducted.

The proceedings involved limited witnesses, no discoveries, and inefficiencies arising from personal family disputes.

The court therefore fixed modest costs to reflect proportionality and the limited financial stakes of the litigation.

Applicants sought a declaration under the Substitute Decisions Act, 1992 that the respondents had effectively resigned as attorneys for property and personal care under powers of attorney granted by the grantor.

The respondents had signed a resignation notice stating that the resignation would become effective when delivered to the grantor and her five children, but the notice was not delivered to all of them.

The court considered the statutory framework governing resignation of attorneys under ss. 11 and 52 of the Act and the evidence regarding whether the attorneys had acted under the powers.

The court held that, regardless of statutory conditions, the respondents imposed their own express condition in the resignation document requiring delivery to all five children.

Because that condition was not satisfied, the resignation was ineffective.

Application concerning the passing of accounts of an attorney acting under a continuing power of attorney for property under the Substitute Decisions Act.

The attorney transferred substantial funds from the incapable person's accounts into a personal PayPal account, failed to maintain proper accounting records as required by regulation, and used estate funds to pay for personal expenses, claiming them as compensation.

The court found several breaches of statutory duties, including inadequate record-keeping and improper methods of taking compensation, though the incapable person's financial well-being was not materially harmed.

Exercising its discretion on a passing of accounts, the court reduced the attorney’s compensation and ordered repayment of a portion of the funds taken.

The attorney was required to repay $10,000 to the estate while the accounts were otherwise passed.

The plaintiff managed a resort under an oral commission-based agreement and sued following termination of the relationship.

The court determined the plaintiff was an independent contractor rather than a dependent contractor and therefore not entitled to reasonable notice of termination.

The defendants breached the agreement by failing to pay commissions on revenues received prior to termination, and were also liable for modest damages for conversion of personal property and for unjust enrichment relating to additional services performed as the defendants’ de facto Canadian agent.

The court rejected claims for further commissions, punitive damages, and most conversion damages.

The defendants succeeded on a counterclaim for possession of two boat motors.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's action regarding sewer system issues.

The plaintiff conceded its existing claims but sought to amend its statement of claim to add causes of action in negligence and negligent misrepresentation.

The court found that the plaintiff discovered the alleged negligence by late 2003 when it began constructing its own sewage lift station.

The court rejected the plaintiff's argument that the negligence was a continuing cause of action.

As the limitation period had expired, the proposed amendments were statute-barred, constituting non-compensable prejudice.

The motion to amend was denied and the action was dismissed.