Norman Ronski

The Court of Appeal for Ontario issued a costs endorsement following its dismissal of an appeal concerning a will dispute.

The respondent, Gayle Shannon, sought substantial indemnity costs.

The court found it appropriate to award enhanced costs due to the appellants' unsubstantiated allegations of misconduct and ordered costs payable personally by the appellants, as the appeal was primarily for their personal benefit rather than the estate's.

The court fixed the respondent's costs at $80,000 all-inclusive, estimating substantial indemnity costs as 80% of full indemnity.

The appellants, estate trustees of Andrew Hrabovsky's estate, appealed a lower court order that set aside the testator's 2007 will due to lack of testamentary capacity and restored his 2006 will.

The appeal raised two main issues: whether the respondent's (Gayle Shannon) challenge to the 2007 will was statute-barred by the Limitations Act, and whether the application judge erred in finding a lack of testamentary capacity.

The appellants sought to introduce fresh evidence on both grounds.

The Court of Appeal dismissed the appellants' motion to adduce fresh evidence, finding a lack of reasonable diligence and that the evidence would not be conclusive.

The court also dismissed the appeal on its merits, upholding the application judge's findings regarding testamentary capacity and the limitations period.

The 2006 will was confirmed as the true last will, and the certificate of appointment related to the 2007 will was set aside.

The respondent was entirely successful in having the applicant's application dismissed and sought costs on a full indemnity basis.

The respondent relied on its status as a non-profit condominium corporation and the explicit terms of its declaration and by-laws, which provided for full indemnity costs.

The court found no reason to ignore the governing documentation and awarded the respondent its requested costs of $164,443.16 on a full indemnity basis.

The applicant, Keele Medical Properties Ltd., sought a declaration that it was exempt from a special assessment levied by the respondent, Toronto Standard Condominium Corporation No. 1786, and that the resulting condominium lien was invalid.

The applicant argued inadequate disclosure in status certificates and that the lien was statute-barred.

The court found that the status certificates provided adequate disclosure of the respondent's financial difficulties and potential for a special assessment.

It also determined that the commercial units owned by the applicant were never properly levied under a prior, invalid special assessment, thus the current lien was not statute-barred.

The application was dismissed, and the special assessment and lien were declared valid and enforceable.

The plaintiff sought partial indemnity costs following its substantial success on a motion for an interlocutory injunction.

The defendants argued the plaintiff achieved only limited success and that the motion could have been avoided if the plaintiff's initial notice of motion had been narrower.

The court found the plaintiff was substantially successful on the core issue of the confidentiality of the Diagnosis Database, which was the focus of the motion.

While acknowledging some unnecessary evidence adduced by the plaintiff, the court awarded the plaintiff partial indemnity costs, reduced from the amount sought, taking into account the factors under Rule 57.01(1).

The plaintiff sought an interlocutory injunction to prevent a former co-founder and his new company from using a confidential 'Diagnosis Database' for predictive modelling in the insurance industry.

The former co-founder had sold his interest in the plaintiff company and subsequently agreed to conduct a benchmarking study for a former client of the plaintiff.

Applying the RJR MacDonald test, the court found a serious issue to be tried regarding the misappropriation of trade secrets, that the plaintiff would suffer irreparable harm from unfair competition, and that the balance of convenience favoured the plaintiff.

The injunction was granted.