COURT OF APPEAL FOR ONTARIO
CITATION: Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296
DATE: 20160425
DOCKET: C60682
Weiler, Hourigan and Huscroft JJ.A.
BETWEEN
Spar Roofing & Metal Supplies Limited, Craig Glynn and Wendy Glynn
Plaintiffs (Appellants)
and
Grant Richard Glynn
Defendant (Respondent)
Lorne S. Silver, for the appellants
C. David Freedman and Suzana Popovic-Montag, for the respondent
Heard: March 29, 2016
On appeal from the judgment of Justice Kevin W. Whitaker of the Superior Court of Justice, dated June 11, 2015.
Weiler J.A.:
A. Overview
[1] This is a family dispute in which the appellants, Craig and Wendy Glynn, seek to set aside a transfer of real property (the Property) to their brother, the respondent Grant Glynn. The transfer resulted in Grant becoming a joint tenant with his parents, Edward and Wanda Glynn, and was a gift from them.
[2] Craig and Wendy allege that Edward, with the concurrence of Wanda, promised the Property to them. They allege that Edward promised them the Property would form part of the corporate assets of Spar Roofing & Metal Supplies Limited, a company founded by Edward and now operated by Craig and Wendy in which they own all of the common shares. The Property serves as the main roadway access and exit to Spar Roofing’s business and is used as a warehouse. It is located in Toronto and is worth in excess of two million dollars.
[3] The motion judge characterized the appellants’ pleading as seeking to enforce Edward’s promise to gift the Property to Craig and Wendy in the future and struck the appellants’ claim as disclosing no reasonable cause of action. He further held that the appellants lacked standing to “bring a claim to divest the defendant of his interests in the property.”
[4] A preliminary issue on this appeal is whether the motion judge’s reasons are so deficient, due to contradictory and conclusory statements, that they are incapable of appellate review. If the reasons are sufficient, the issues are whether the motion judge erred in striking the appellants’ claim without leave to amend and whether the appellants ought to be granted leave to amend their pleading.
[5] For the reasons that follow I would hold that the motion judge’s reasons are sufficient because they explain the basis for his conclusion. While he did not err in characterizing the claim as being about a promise to make a gift of land, I would hold that he erred in dismissing the claim without granting the appellants leave to amend their pleading. Accordingly, I would grant the appellants leave to amend.
B. The Facts Alleged
[6] The facts as pleaded are summarized below.
[7] On or about August 1994, Edward, as landlord, and Spar Roofing, as tenant, entered into a 30-year lease of the Property at the same fixed-rate rent for the entire lease period. The lease was signed by Craig on behalf of Spar Roofing and registered on title. Edward assured Craig and Wendy that the lease was a means of ‘guaranteeing’ that the Property would form part of the company assets. Grant understood that the Property would be included in the company assets.
[8] On December 19, 2003, Edward and Wanda entered into a letter agreement with Craig and Wendy to govern share ownership in Spar Roofing. The agreement provided that all of the common shares were owned by Craig and Wendy and that upon the deaths of Edward and Wanda, the Class A and Class B shares would also be assigned to Craig and Wendy with the result that they would become the sole shareholders of the company.
[9] Edward promised Craig and Wendy on many occasions that his estate would be split between his personal assets and the assets related to the company. Upon his death the company assets would vest with Craig and Wendy or the company. Edward also represented and assured Craig and Wendy that Wanda was in agreement with this arrangement.
[10] Edward’s mental health began to deteriorate in the early 2000s, when he started suffering from dementia/Alzheimer’s and Parkinson’s disease. He was permanently hospitalized for dementia on or about February 22, 2011. Wanda was also hospitalized for various physical and mental health issues around the same time.
[11] Both parents became mentally incompetent and were unable to manage their personal and financial affairs.[^1] On or about February 2011, Grant assumed control over his parents’ affairs and refused to discuss them with Craig or Wendy. The statement of defence pleads that when Edward and Wanda made their 2009 wills leaving the Property to Grant, they also made powers of attorney for property and personal care, appointing the other as attorney with Grant as the substitute or alternate attorney.
[12] In May 2012, Grant arranged for a transfer agreement whereby the Property was transferred to him as a joint tenant with Edward and Wanda. He arranged for a solicitor to sign the agreement on behalf of his parents and register it. The statement of defence pleads that Edward and Wanda personally signed a direction and authorization for the lawyer to proceed with the transfer.
[13] The Property transfer shows the Property being given to Grant as a gift.
[14] Craig and Wendy did not learn about the transfer until August 2012, when they discovered Grant’s name on a tax bill for the Property.
[15] Craig and Wendy alleged in the statement of claim that in arranging for the transfer of the Property to him as a joint tenant, Grant exercised undue influence over Edward and Wanda when they were suffering from mental illness and that they did not receive independent legal advice prior to entering into the transfer. They further alleged that Grant was in a fiduciary relationship with Edward and Wanda, and that he received a benefit from the transfer to the detriment of Edward, Wanda, Craig and Wendy. Alternatively, or in addition, Craig and Wendy alleged that the transfer was void because Edward and Wanda lacked mental capacity to enter into the transfer.
[16] Craig and Wendy also alleged that Grant was aware that “it was always Edward’s intention to gift the Company Assets (including the Property) to Craig and Wendy or the Company upon his death” and that Grant’s conduct deprived them of an asset to which they are lawfully entitled.
[17] Since Edward’s death on February 1, 2014, Grant has rejected every request to inform Craig and Wendy of his alleged status as executor of Edward’s estate and attorney over Wanda’s property and care.
C. The Motion Judge’s Reasons
[18] The core of the motion judge’s decision is found at paras. 7, 9, 10 and 11 of his reasons:
[7] The plaintiffs plead that the property was the subject of oral promises made by Edward to Craig and Wendy, and that the property would be transferred to them as part of his estate plan. This statement of claim does not plead consideration being provided to Edward and/or Wanda, nor terms by which it could be said that title to the property was to be transferred [to] Spar. The plaintiffs agree that Grant was added to title as a joint tenant by Edward and Wanda on the transfer date.
[9] A gift is not a fulfillment of an obligation. A donor may simply never make the gift if he or she does not wish to do so even if a promise was made. The plaintiffs do not plead any agreement existing between the defendant and them. The plaintiffs cannot sue for a third party and lack standing to set aside the gift to Grant.
[10] It is undisputed that the joint tenants prior to the transfer were Edward and Wanda. The plaintiffs have no financial interest or legal entitlement to the property.
[11] The oral promise to gift is not enforceable as a matter of law. The plaintiffs have no standing to bring a claim to divest the defendant of his interests in the property. The plaintiffs’ claims cannot be the basis for the relief which the [plaintiffs] seeks.
[19] The motion judge observed, at para. 13 of his reasons, that it was premature for Grant to rely on the Statute of Frauds, R.S.O. 1990, c. S.19, as a basis for striking out the appellants’ claim, as this was a defence that they need not anticipate. The motion judge further noted that whether there was sufficient evidence of past conduct as part performance (that the appellants wished to put forward by way of reply) to bring the matter within an exception to the Statute of Frauds was a matter to be determined at trial and not at the pleading stage. In so observing, the motion judge relied on Collins v. Cortez, 2014 ONCA 685, 39 C.C.L.I. (5th) 1, at para. 10, and Mountain v. Mountain Estate, 2012 ONCA 806, 112 O.R. (3d) 721. The motion judge also noted that the presumption of Wanda’s capacity is a matter of defence and that the appellants should not plead the manner by which they have proof of her incapacity.
[20] At para. 15 of his reasons, the motion judge stated:
On these facts, it cannot be said that it is plain and obvious that the statement of claim discloses no reasonable cause of action. In the alternative and in the event that the statement of claim may be deficient, the appropriate remedy is the extension of time within which to deliver a reply.
[21] At para. 16 of his reasons, the motion judge simply stated that Grant’s motion to strike was allowed.
D. Discussion and Analysis
(1) Are the motion judge’s reasons sufficient to permit appellate review?
[22] A judge’s reasons must be read as a whole. An appellate court cannot intervene simply because it believes the judge did a poor job of expressing himself. A failure to give adequate reasons is not a free standing basis for appeal: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 99. The duty to give reasons should be given a functional and purposeful interpretation. If the reasons explain the basis for the decision reached and why the judge arrived at his or her conclusions, they will be sufficient: D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356, 307 O.A.C. 71, at paras. 36-37.
[23] The appellants submit that the reasons of the motion judge are contradictory, confusing and conclusory, fail to provide an explanation for the ultimate disposition and fail to provide reasons for denying the appellants’ request to file a reply to the effect that the requirements of the Statute of Frauds have been met.
[24] I read the reasons of the motion judge as in effect saying the following:
- The claim alleges an oral promise by Edward and Wanda to transfer the Property to Spar Roofing and thus to Craig and Wendy, who would ultimately be the sole shareholders of Spar Roofing. No consideration is pleaded for this promise. A promise to make a gift without more is unenforceable at law. [While the pleading alleges that Grant was aware of the promise made by Edward and Wanda to the plaintiffs] it does not allege any agreement with Grant.
- Although Grant relied on the Statute of Frauds as a basis for striking the statement of claim, this was a defence that the appellants need not have anticipated and could have been dealt with by way of reply. The sufficiency of past conduct as performance is a matter for trial. Compliance with the Statute of Frauds was not a basis on which to dismiss the claim at the pleading stage. It was thus unnecessary to grant the plaintiffs request for an adjournment to file a reply.
- It could not be said that the statement of claim disclosed no reasonable cause of action [given the allegations of mental incapacity on the part of Edward and Wanda to make the transfer and the allegations of undue influence and breach of fiduciary duty against Grant]. The appropriate remedy for a deficiency in pleading was an extension of time.
- [Edward’s estate trustee and Wanda do not attack the transfer.] The plaintiffs cannot sue Grant for the benefit of/on behalf of a third party. The plaintiffs have no financial interest or legal entitlement to the Property. Thus, the plaintiffs lack standing to attack the transfer of the Property to Grant.
- Grant’s motion to strike should be allowed.
[25] While the reasons are not easy to understand, reading them as a whole and giving them a functional and purposeful interpretation, they explain the basis for the motion judge’s decision to strike the pleading, why he refused to grant an adjournment to file a reply and how he arrived at his conclusion.
[26] This ground of appeal is dismissed.
(2) Did the motion judge err in characterizing the claim as a being about a promise to gift the Property?
[27] The appellants’ primary position is that the motion judge erred in characterizing Edward’s promise as a gift. They submit that the motion judge’s characterization of the pleading as being about a gift is a false premise upon which he based his decision. They submit that what was pleaded was an agreement to convey property and the motion judge therefore erred. They submit that the long-term lease with no provision for rent increase is part performance of the agreement, and that the omission to specifically plead part performance of the agreement or to plead consideration could have been corrected by an amendment to the pleading.
[28] The appellants further argue that, pursuant to the agreement to convey the Property, they had an equitable interest in the Property and standing to challenge the transfer to Grant. The motion judge’s conclusion, at para. 10 of his reasons, that, “The plaintiffs have no financial interest or legal entitlement to the property” is based therefore on the incorrect conclusion that what was pled was a gift, and if there was an agreement to transfer the Property, the motion judge’s holding that the pleading seeks to enforce a promise to make a gift is not available. The appellants submit that the pleading alleges an agreement that Grant took steps to frustrate through the exercise of undue influence over his parents, or in breach of his fiduciary duty when he was controlling his parents’ affairs, and that the court should give effect to the pleading that Wanda lacks capacity.
[29] The appellants’ forceful argument ignores, however, para. 25 of the pleading which states: “As Grant was aware, it was always Edward’s intention to gift the Company Assets (including the Property) to Craig and Wendy or the Company upon his death” (emphasis added).
[30] The pleading as a whole is consistent with the characterization of the arrangement as a promised gift rather than as an agreement to convey. The letter agreement pleaded in para. 10 does not deal with the Property; it deals only with share ownership in Spar Roofing. Paragraph 11 pleads that Edward promised Craig and Wendy that his estate would be split between his personal assets and the assets related to the company with the company assets vesting in Craig and Wendy or the company and that Wanda agreed with this arrangement. Paragraph 13 pleads that the Property would form part of the company assets. Paragraph 14 pleads the existence of the lease agreement. While it is submitted that pleading the lease agreement is pleading part performance of a contract, the pleading is equally consistent with the favorable terms of the lease agreement being a gift.
[31] The pleading does not allege an agreement to convey the Property in exchange for services performed or money spent; it does not allege any acts done in reliance on a promise to convey. Overall, the pleading does not allege that Edward and Wanda breached any alleged agreement and Wanda has not been sued. Inasmuch as no agreement is pleaded, the pleading does not specifically allege that Grant induced the breach of this agreement.
[32] The relief sought in the statement of claim is simply that the transfer be set aside and an injunction issued against Grant as well as permission to file a statement of pending litigation. A declaration of entitlement to the Property is not sought as part of the relief requested by the appellants.
[33] The motion judge was of the opinion that the issue of the Statute of Frauds was a matter to be dealt with at trial. At the same time, he dismissed the claim. It does not appear that he considered whether an adjournment to permit a reply might affect his decision on the claim’s viability. What exactly was argued in support of the request for an adjournment to file a reply is unclear.
[34] The motion judge did not err in his characterization of the appellants’ claim as a promise to make a gift. On the basis of the material before him, it appeared to be obvious that the appellants lacked standing to have Grant account for the transfer of an interest in the Property to him.
(3) Did the motion judge err in not granting leave to amend?
[35] Rule 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that “at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” The words “at any stage” include the appeal: see e.g. Conway v. Law Society of Upper Canada, 2016 ONCA 72.
[36] The rule is designed to carry out the underlying principles reflected in the Courts of Justice Act, R.S.O. 1990, c. C.43, of encouraging public access to the courts (s. 71) and affirming the role of the Superior Court as a court of equity (s. 96) where actions are decided on their merits. Another purpose is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions. The object of the rule requiring the court to grant leave to amend is not that the party’s case should be so framed as to succeed but that it be framed so that it can be adjudicated by the court, whether for or against the party.
[37] As far back as 1883, Lord Brett M.R. laid down this rule regarding the amendment of pleadings in Clarapede v. Commercial Union Assn. (1883), 32 W.R. 262; it was restated by Lord Esher M.R. in Steward v. North Metropolitan Tramways Co. (1886), 16 Q.B.D. 556, 55 L.J.Q.B. 157 (C.A.), as follows:
The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs: but, if the amendment will put them into such a position that they must be injured, it ought not to be made.
This rule was adopted in Ontario in Williams v. Leonard (1895), 16 P.R. 544, at p. 549 (Ont. H.C.), aff’d (1896), 1896 CanLII 16 (SCC), 17 P.R. 73 (Ont. C.A.), aff’d (1896), 26 S.C.R. 406. This court has recently affirmed the principle that amendments should be allowed absent non-compensable prejudice and noted additional factors to guide the application of r. 26.01: see Marks v. Ottawa, 2011 ONCA 248, 280 O.A.C. 251, at para. 19; 1317424 Ontario Inc. v. Chrysler Canada Inc., 2015 ONCA 104, 330 O.A.C. 195, at para. 7.
[38] Although the appellants did not make a specific request to amend the claim, their request for an adjournment of the motion to file a reply was in effect a request to amend. As indicated, the motion judge was of the opinion that an adjournment to file a reply respecting the Statute of Frauds was unnecessary. However, when he dismissed the entire claim, r. 26.01 required the motion judge to consider whether leave to amend should be granted and, if he determined that it should not, to provide reasons responsive to the grounds for refusing leave identified in the jurisprudence, unless his reasons for not granting leave were obvious or could be inferred.
[39] No draft amended statement of claim has been proffered on appeal in support of the request for leave to amend. Based on the oral argument on appeal, the proposed amendment would allege an agreement wherein Edward, with Wanda’s concurrence, promised to convey the Property to Craig and Wendy or to Spar in exchange for the performance of services and money expended on the Property. The agreement was to be fulfilled upon Edward’s death or at the latest when Wanda died. The theory of the case would be that Edward and Wanda were not able to convey an interest in the Property to Grant as a joint tenant because at the time of the transfer the appellants already had an equitable interest in the Property. In addition to requesting that the transfer be set aside, the prayer for relief would need to be amended to request a declaration that the appellants held an equitable interest in the Property at the time of the transfer to Grant. The pleading would also allege that Grant prevented the agreement from being fulfilled by having an interest in the Property transferred to himself as joint tenant.
[40] The proposed amendment seeks to plead an additional legal theory which flows partly from the facts already pleaded and partly from additional facts that the appellants wish to plead. The purpose of the amended claim would be to obviate the question of standing at the pleading stage and to avoid a later argument that the legal theories and consequences flowing from the facts as proven were not pleaded.
[41] The respondent submits that an oral promise to gift land is simply unenforceable as a matter of established law and, as a result, the motion judge did not err in striking the claim. He further submits that, as pleaded, the motion judge did not err in holding that the appellants lack standing to bring their action. I acknowledge the strength of these submissions but they do not answer the question of whether leave to amend should now be granted.
[42] On the issue of whether leave to amend should be granted, the respondent renews his argument that the appellants’ proposed amendment is unenforceable because they cannot bring themselves within the exception to the Statute of Frauds. The respondent further submits that the appellants have misapprehended the equitable doctrine of part performance of an agreement in relation to land that would otherwise be unenforceable because it is not in writing. He submits that the appellants must plead acts done in reliance of such magnitude that it would be inequitable and unconscionable to deny them relief. He points out that the law requires that the acts put forward as part performance refer to the alleged contract dealing with the land, and refers to Steinberg v. King, 2011 ONSC 3042, and Cowderoy v. Sorkos Estate, 2012 ONSC 1921, 23 R.P.R. (5th) 36, in support of this argument.
[43] The respondent’s submission is in effect a submission that the court should consider the merits of the factual and legal basis for the proposed amendment at the pleading stage and not at a later stage of the proceedings. That is not the law under r. 26.01. As stated in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2016 Edition (Markham, ON: LexisNexis Canada, 2015), at p. 1151:
The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success.
Put another way, an amendment is to be granted unless it would have been struck out under r. 21.01(1)(b) if it had been pleaded originally: 1317424 Ontario Inc., at para. 7. A motion to strike out a pleading on the ground it discloses no reasonable cause of action or defence must not, however, be conflated with a motion for summary judgment under r. 20.04: see Andersen Consulting v. Canada (Attorney General) (2001), 2001 CanLII 8587 (ON CA), 150 O.A.C. 177 (C.A.), at paras. 34-37; Griffiths v. Canaccord Capital Corp. (2005), 2005 CanLII 42485 (ON SCDC), 204 O.A.C. 224 (Div. Ct.), at para. 10.
[44] The proposed amendment to the pleading discloses a cause of action. That question is whether an alleged oral agreement made between the appellants and Edward and Wanda should be enforced against Grant notwithstanding the requirements of the Statute of Frauds and notwithstanding the lack of privity of contract between the appellants and him. While difficult to prove, it cannot be said that the proposed amendment is incapable of proof.
[45] In my view, given that the respondent does not allege prejudice that cannot be compensated for in costs, the appellants must be given leave to amend their pleading.
(4) Do the plaintiffs have standing to question the transfer of the Property to Grant on the basis of alleged undue influence and breach of fiduciary duty?
[46] An alternative ground of appeal is whether, apart from any alleged agreement to convey, the appellants have standing to seek to set aside the transfer to Grant. The pleading alleges that Grant took advantage of Edward and Wanda when they were suffering from mental illness. The appellants further plead, in para. 23 of their claim, that they are entitled to have the transfer set aside because of undue influence by Grant on Edward and Wanda; that Grant was in a fiduciary relationship with Edward and Wanda as the manager of their financial affairs; and, that Grant received a benefit from the Property transfer that was to the detriment of Edward, Wanda, Craig and Wendy and in breach of Grant’s fiduciary duty to Edward and Wanda.
[47] In addition, the appellants plead that Grant assumed control over his parents’ affairs and that since Edward’s passing on February 1, 2014, Grant has rejected every request to inform his siblings respecting his alleged status as executor of Edward’s estate and attorney over Wanda’s property and care. Thus, the pleading alleges that in respect of Edward, the attorney (while Edward was alive) and estate trustee (now that Edward is deceased) are one and the same person, namely Grant. I read the claim as requiring Grant to account for his actions respecting the Property and to justify his actions as being beneficial to the donees of the power of attorney, failing which, the transfer should be set aside. The appellants also allege that Edward and Wanda lacked the mental capacity to manage their affairs at the time they gave a direction to the lawyer who carried out the transfer.
[48] The motion judge recognized this pleading constituted a valid cause of action, but because he was of the view that the appellants lacked any financial or other interest in the Property, he held they had no standing to challenge the transfer to Grant as a joint tenant. The appellants submit that on the basis of the allegations made in their claim they do have standing to impugn Grant’s actions. They ask: “If the Appellants do not have standing in that regard, who does?” They do not, however, answer the question.
[49] As I would grant the appellants leave to amend their pleading so that the action can proceed based on the alleged existence of an oral agreement concerning the Property, it is unnecessary to decide this issue. I would, however, make the following observations.
[50] At common law, a general power of attorney terminated upon the grantor’s subsequent mental incapacity or death, and only the grantor or the grantor’s estate had standing to call the donee to account for his actions as attorney: see Axler v. Axler (1993), 50 E.T.R. 93 (Ont. Gen. Div.), at p. 99, per Borins J.; Leung Estate v. Leung (2001), 38 E.T.R. (2d) 226 (Ont. S.C.), at p. 229.
[51] The common law relating to powers of attorney has, however, been supplanted in Ontario by statute. Powers of attorney are now governed by the Powers of Attorney Act, R.S.O. 1990, c. P.20, and the Substitute Decisions Act, 1992, S.O. 1992, c. 30. The SDA is a comprehensive statute which governs, among other things, all aspects of continuing powers of attorney for property and powers of attorney for personal care. Section 42(1) of the SDA provides: “The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed.” The persons who may bring an application for a passing of accounts are listed in s. 42(3) and (4), and include: “Any other person, with leave of the court.”
[52] A line of jurisprudence in Ontario interpreting the SDA has held that, following the grantor’s death and where the attorney and estate trustee are one and the same person, there can be no true accounting as between the attorney and estate trustee. As a result, courts have permitted beneficiaries and others in this circumstance to seek leave, as “any other person” under s. 42(4), to apply to the court for a passing of the attorney’s accounts for the period the attorney acted prior to the grantor’s death: see De Zorzi Estate v. Read (2008), 38 E.T.R. (3d) 318 (Ont. S.C.), at paras. 11-13; McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont. S.C.), at para. 9; Carfagnini v. Carfagnini Estate, 2014 ONSC 3575, at paras. 17-18; Testa v. Testa, 2015 ONSC 2381, 10 E.T.R. (4th) 192, at para. 39; La Croix v. Kalman, 2015 ONSC 19, at para. 40.
[53] The SDA and related jurisprudence were not before the court and therefore we did not hear argument on it. I raise it only to indicate that the law in this area is evolving and to point out that the SDA provides a mechanism for a third party to compel an attorney to account. My comments should not be taken as suggesting that any application by the appellants under the SDA would ultimately be successful.
E. Disposition and Costs
[54] I would allow the appeal and grant leave to amend the claim, and would permit the appellant to serve and file within 60 days of the date of the release of these reasons an amended statement of claim that pleads the existence of an oral agreement concerning the Property with proper particulars. I would permit the respondent to serve and file an amended statement of defence to that claim in accordance with the timelines set out in r. 18.01.
[55] I would set aside the costs awarded at first instance to the respondent on the motion and instead would order that there be no costs of the motion. The appellants are entitled to their costs of the appeal which, as agreed, are fixed at $15,000 inclusive of all applicable taxes and disbursements.
Released: “KMW” April 25, 2016
“Karen M. Weiler J.A.”
“I agree C.W. Hourigan J.A.”
“I agree Grant Huscroft J.A.”
[^1] Prior to the hearing of the motion, a lawyer representing Wanda sent a letter stating that her client had no desire to take part in the proceedings.