Nima Hojjati

This decision addresses the costs arising from a successful motion by Lucien Cammaert to transfer proceedings from Toronto to Sudbury.

Lucien sought substantial indemnity costs, while Rosemary Maki, the unsuccessful party, argued for no costs or costs in the cause, asserting her initial choice of venue was reasonable and that she was seeking an accounting of assets.

The court found Lucien presumptively entitled to costs, rejecting Rosemary's arguments that her positions were unreasonable enough to warrant substantial indemnity, but also that costs should be in the cause.

The court awarded partial indemnity costs to Lucien, emphasizing that the unsuccessful party's conduct did not warrant elevated costs, but also did not justify deviating from the general rule that costs follow the event.

The applicant, Rosemary Maki, sought leave under section 42 of the Substitute Decisions Act, 1992, to compel the respondent, Lucien Cammaert, to pass his accounts regarding his management of their father's (Willy Cammaert) property.

The father, 89 and in long-term care, was deemed to lack capacity.

The applicant alleged extensive involvement and mismanagement by the respondent since 2016, leading to a significant erosion of the father's assets.

The respondent claimed the father managed his own finances until a stroke in February 2024 and that transfers were gifts.

The court granted leave, finding the applicant had a genuine interest and that the respondent was involved in the property's management since January 2016, regardless of the father's capacity at the time, and had not fully accounted for his dealings.

The applicant was awarded costs.

The applicants challenged the capacity of Anastasia Helen Troy ("Ann") when she signed her 2022 will and powers of attorney (POAs), alleging incapacity and undue influence.

They sought a declaration that Ann is currently incapable, appointment as guardians, and an accounting.

The respondents moved to dismiss the application.

The court dismissed the challenge to the will, stating it cannot be challenged while the testator is alive.

However, the court found sufficient "suspicious circumstances" to allow the challenge to the 2022 POAs to proceed, noting concerns about Ann's cognitive decline and the respondents' conduct.

The court denied the request for an accounting at this stage due to no direct evidence of mismanagement but granted directions for medical record disclosure and ordered parties to conduct themselves respectfully around Ann.

The applicant, Rosemary Maki, initiated an application in Toronto seeking a declaration of her father's incapacity, the setting aside of his Powers of Attorney, and her appointment as guardian.

The respondent, Lucien Cammaert, brought a motion to transfer the application to Sudbury.

The court, applying Rule 13.02(2)(b) of the Rules of Civil Procedure, considered factors such as where the events occurred, where the subject matter was located, and the convenience of parties and witnesses.

Given that the Powers of Attorney were executed in Espanola (Sudbury District), the property is located there, and most parties and witnesses reside in the Sudbury District, the court found that Sudbury was a "significantly better" venue.

The motion to transfer the proceedings to Sudbury was granted.

The applicant commenced an application challenging her late father's will and seeking dependent support.

On the eve of trial, the applicant reached a settlement with the estate trustee and brought a motion to discontinue the proceeding.

The non-settling respondent opposed the discontinuance and sought to be substituted as the plaintiff.

The court granted the motion to discontinue, finding the applicant would be prejudiced if forced to proceed to trial, while the non-settling respondent could still commence his own proceeding.

The motion for substitution was dismissed due to the respondent's unexplained delay in advancing his own claim.

At a case conference in a dependants' relief application, the applicants sought the summary appointment of an Estate Trustee During Litigation (ETDL).

The court adjourned the request to allow the responding party proper notice and an opportunity to be heard, noting that the respondent's counsel lacked instructions.

The court ordered the deposit of the will on consent and urged the parties to cooperate to avoid unnecessary costs in a small estate.

The applicant, in his capacity as Estate Trustee, sought a declaration that the deceased's August 28, 2000 Will was valid and an order requiring the respondent to vacate estate property and pay occupation rent.

The respondent presented a modified version of the will, arguing for its validity or for an intestacy, and sought to buy out the applicant's interest in the property.

The court found the original 2000 Will to be valid, dismissed the modified will and other handwritten notes as non-testamentary, and ordered the respondent to vacate the property and pay occupation rent, as he had no legal interest in the estate property and his actions caused delay and expense to the insolvent estate.

The appellants, trustees of the Estate of Vincent Di Santo and the Vincent Di Santo 2003 Family Trust, appealed an order that permanently removed them and appointed CIBC Trust Corporation as replacement.

The original order also granted further interim funding to the respondent, Ottavio Di Santo.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision that permanent removal was sought and necessary.

The court upheld the motion judge's finding that the trustees' mindset had become intractable, they were in a position of conflict, acted unilaterally, or could not objectively exercise their discretion, thus meeting the high threshold of "clear necessity" for trustee removal.

The applicant, Christina Atkinson, moved to set aside an assessment officer's order that upheld her former lawyers' (Whaley Estate Litigation - WEL) account in full after a four-day hearing.

WEL cross-moved to dismiss Atkinson's motion and confirm the assessment, arguing that Atkinson's failure to make objections to the assessment pursuant to Rule 58.10 of the Rules of Civil Procedure meant there was no jurisdiction to consider her challenge.

The court dismissed Atkinson's motion, finding that objections were required for the specific issues raised, which were not jurisdictional.

The court also found no basis to interfere with the assessment officer's credibility findings or his assessment of WEL's skill, competence, and the result achieved, despite the client's ultimate dissatisfaction with the outcome.

The Court of Appeal heard three motions related to an ongoing appeal concerning the removal and replacement of estate and family trust trustees.

The Appellants (original trustees) sought a stay of the order removing them and appointing CIBC Trust Corporation.

The Respondent (Ottavio Di Santo) sought to lift a stay on a costs order and to quash or stay the Appellants' appeal.

The court granted the Appellants' stay motion, finding a serious issue, irreparable harm, and balance of convenience in their favour.

The Respondent's motions to lift the costs stay and to quash/stay the appeal were dismissed.

Costs were ordered payable from the Estate.

The respondents brought a motion to remove the applicant's counsel, alleging a conflict of interest because counsel acted for the applicant personally, as Estate Trustee, and for the Estate, and arguing counsel might become witnesses.

The court dismissed the motion, finding that counsel acts for the Estate Trustee, not the Estate, and there was no evidence of a conflict or that counsel would need to testify.

The court also ordered the respondents to provide outstanding disclosure, pay $15,000 in costs thrown away for a previously adjourned hearing, and directed that any proceeds from the sale of a disputed condominium be paid into court.

The plaintiff brought a medical malpractice action against two physicians following the death of her father.

The plaintiff, acting as her father's substitute decision-maker, had requested that he be treated as 'full code'.

However, the physicians determined that the patient was actively dying and that CPR would almost certainly not benefit him and would only cause harm.

They wrote a 'do not resuscitate' order without the plaintiff's prior consent.

The plaintiff claimed damages under the Family Law Act and for nervous shock.

The Superior Court of Justice dismissed the action, finding that the physicians met the standard of care, that writing a DNR order is not a 'treatment' requiring consent under the Health Care Consent Act, and that the physicians did not owe a duty of care to the plaintiff that would conflict with their paramount duty to their patient.