Orie Hertzog Niedzviecki

The plaintiff brought an action challenging the validity of her late mother's 2007 Will and seeking to uphold an earlier 2006 Will.

The defendant counterclaimed for an accounting of the mother's funds, alleging the plaintiff misappropriated money while acting as a joint account holder and attorney for property.

The court found the 2007 Will valid, concluding the defendant dispelled any suspicious circumstances and the plaintiff failed to prove undue influence.

On the accounting issue, the court held the plaintiff was a resulting trustee of the joint accounts and failed to meet the strict evidentiary burden to justify her expenditures.

The plaintiff's claim was dismissed, and she was ordered to repay $137,443.29 to the estate.

The court considered whether to remove the respondent, Kathryn Pietron, as executrix and trustee of her late father's estate on an interim basis due to her health concerns and failure to comply with court orders.

The court found that, while a final removal motion was pending, the respondent's inability to fulfill her duties created an urgent risk to the beneficiaries.

The applicants, Joe and Ted Panchyshyn, were appointed as interim executors and trustees until the motion for permanent removal could be heard or further order of the court.

The Court of Appeal for Ontario issued a costs endorsement following an appeal that partially reduced damages awarded to the respondents at trial.

The appellants argued that the reduced award, falling below their pre-trial Offer to Settle, should significantly impact the trial costs.

The court, considering the divided success at trial, the unrealistic claims made by both parties, and the prolonged litigation, set aside the trial judge's costs award and ordered that the parties bear their own costs for the trial level.

The appellants were awarded agreed-upon costs for the appeal.

This appeal concerned a dispute between an accountant and an accounting firm regarding compensation for work performed and entitlement to work in progress (WIP).

The appellants, the accounting firm and its principal, challenged the trial judge's findings on client ownership, the calculation of the accountant's 2014 compensation, and her entitlement to WIP.

The Court of Appeal upheld the trial judge's finding that the clients were the accountant's own, but found errors in the calculation of 2014 compensation due to lack of evidentiary support and in the award for WIP due to double-counting.

The appeal was allowed in part, reducing the compensation owed and reversing the WIP award.

Dexter Ramsundarsingh brought a motion for the rehearing of an appeal decided by the Court of Appeal for Ontario, seeking to re-open the appeal and re-hear submissions on whether a suicide note should be construed as a codicil to a previous will rather than a valid holographic will.

The court dismissed the motion, finding that it did not meet the "high hurdle" required for re-opening an appeal before a formal order is issued, as the issue had already been identified and argued in the original appeal.

The court clarified its jurisdiction to reconsider but found no rare circumstance warranting a re-hearing.

The plaintiffs, collectively known as the "Groves Group" sought summary judgment for an "earn out" payment of $1,333,333.33, plus interest, from the defendant, UTS Consultants Inc. (UTS), under a Share Purchase Agreement.

In the alternative, they sought partial summary judgment for $491,010.83.

UTS argued that genuine issues requiring a trial existed, including a limitation period defense, waiver, and bad faith, and that the evidentiary record was insufficient for summary disposition.

The court dismissed the motion for summary judgment, finding that the plaintiffs failed to demonstrate there were no genuine issues requiring a trial, particularly given the need for credibility assessments and the inadequacy of the documentary evidence.

Partial summary judgment was also deemed inappropriate as it would not shorten the trial or avoid the risk of inconsistent findings.

The appellant appealed a trial judgment that awarded her only $1,897.89 on a claim of over $880,000 against the respondent, who was a guarantor of a second mortgage.

The appellant sought to add various payments she allegedly made for repairs, renovations, and to keep a first mortgage in good standing to the principal of the second mortgage.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings and no errors of law in rejecting the appellant's claims, including her late assertion of equitable subrogation.

The cross-appeal regarding the trial judge's decision to award no costs was also dismissed.

The Court of Appeal for Ontario heard an appeal concerning the testamentary capacity of a deceased who wrote a holograph will (suicide note) shortly before his death, while under the influence of alcohol and drugs.

The lower court had found a lack of testamentary capacity and issued a blended costs order.

The appellate court revisited the determination of testamentary capacity in suspicious circumstances and the principles governing costs in estate litigation.

The Court found that the application judge erred in principle by failing to apply the correct legal test for testamentary capacity and concluded that the deceased did possess testamentary capacity.

The Court also found that the costs order below was wrongly decided, as the public policy considerations in estate litigation dictated that costs should generally be paid from the estate when the litigation arises from the testator's conduct or suspicious circumstances surrounding the will.

The appeal was allowed, the suicide note was declared a valid will, and the costs order was set aside, with new costs orders made payable from the estate.

The plaintiff accountant joined the defendant accounting firm under an unwritten resource-sharing or partnership arrangement.

After the relationship broke down, the plaintiff sued for unpaid compensation and the return of a capital contribution, while the defendants counterclaimed for misrepresentation, breach of fiduciary duty, and defamation.

The court found an implied agreement for compensation based on the parties' conduct and awarded the plaintiff $71,223 for unpaid 2014 compensation plus the return of her $40,000 capital contribution.

However, the court also found that the plaintiff defamed the defendants by calling them 'crooks' to a client, awarding the defendants $30,000 on their counterclaim.

The plaintiff contractor sued the defendant homeowners for unpaid amounts under a contract for the construction of a custom home.

The defendants counterclaimed, alleging the plaintiff breached the contract through delays, poor workmanship, and misrepresentations, and argued they were justified in refusing further payments and denying the plaintiff access to the property to fix deficiencies.

The court found that the defendants repudiated the contract by refusing to pay and locking the plaintiff out, while the plaintiff remained willing to complete the work.

The defendants' counterclaim was dismissed, and liability was found in favour of the plaintiff, with damages to be determined at a later hearing.

The Executor sought full indemnity costs of $28,911.33 to be paid personally by the Objectors following a hearing with mixed results regarding the passing of accounts.

The Objectors sought full indemnity costs of $19,155.50.

The court found that the hearing had mixed results and neither party made an offer to settle.

Applying the modern approach to estate costs based on fairness and proportionality, the court ordered the Estate to pay fixed costs of $13,500 plus HST to both the Executor and the Objectors.

The appellant brought a motion to transfer her appeal, which had previously been quashed by the Court of Appeal, to the Divisional Court.

The motions judge considered whether there was jurisdiction to transfer an appeal weeks after it had been quashed.

More critically, the judge found that the appellant had already requested and been denied this transfer by the original panel that quashed the appeal.

A single motions judge lacks the jurisdiction to reverse a panel's decision or to grant relief that could have been, but was not, sought from the panel.

The motion was dismissed, and the appellant was advised that her only remedy was to initiate a new appeal in the Divisional Court.

The appellant appealed a judgment of less than $50,000 to the Court of Appeal for Ontario.

The Court of Appeal quashed the appeal, holding that it was properly brought to the Divisional Court due to the monetary amount.

No costs were awarded.

The applicants objected to the passing of accounts by the respondent estate trustee for both the pre-death and post-death periods.

The court passed the pre-death accounts but denied compensation to the trustee for that period, finding she acted merely as an agent and was already adequately compensated by the deceased.

For the post-death period, the court passed the accounts but reduced the trustee's compensation to 1.5% due to her role in generating hostility and litigation.

The court also ordered the estate to pay the trustee's legal fees of $80,479.97.

The appellant sought to overturn a motion judge's decision to amend prior court orders, arguing that an equalization payment of $280,000 was still owed despite a subsequent settlement agreement.

The Court of Appeal affirmed the motion judge's finding that the final settlement agreement, which divided funds from the matrimonial home sale, was intended to settle "all outstanding issues" including the equalization payment.

The court applied the "officious bystander test" and common sense to conclude that the equalization payment was implicitly offset by other amounts owed, dismissing the appeal.

Following the dismissal of an application to admit a suicide note as a holograph will, the court determined the costs payable to the successful respondents.

The court found that the applicant acted unreasonably in pursuing the application to oust legacies in the prior will, but acknowledged the estate bore some responsibility due to the testator's actions.

The court ordered blended costs, with the applicant paying a significant portion and the remainder payable out of the estate.

The applicant sought to admit the deceased's suicide note into probate as a holograph will.

The deceased had a history of heavy alcohol and drug use and wrote the profanity-laced note shortly before taking his own life, attempting to disinherit his spouse.

The court found that suspicious circumstances existed, shifting the burden to the applicant to prove testamentary capacity.

Given the evidence of the deceased's intoxication and the lack of a definitive expert opinion on capacity, the court concluded the applicant failed to meet the burden.

The application to admit the note as a holograph will was dismissed.

The plaintiff mortgagee sought to recover over $1.3 million from the defendant guarantor.

The court previously determined that the mortgage amount could not be increased by payments made by the plaintiff's corporation.

This decision addresses the final judgment amount, post-trial interest adjustments, and costs.

The court calculated the amount owing under the mortgage to be $1,897.89.

It declined to suspend interest, finding no legal basis for it.

Regarding costs, the plaintiff sought substantial indemnity costs, while the defendant sought costs against the plaintiff.

The court applied Rule 57.05(1) and exercised its discretion to deny costs to the plaintiff, given the minimal recovery compared to the amount claimed and the plaintiff's knowledge regarding the legal basis of her claim.

The court also found no legal basis to award costs to the defendant.

The plaintiff, Janet Louise Hilson, sought to recover amounts from the defendant, Carole Evans, as guarantor of a second mortgage.

Hilson claimed her initial investment in the mortgage, payments made to keep a first mortgage in good standing, and amounts for repairs and renovations.

The court dismissed Hilson's claims for equitable subrogation for pre-purchase payments and for payments made by her corporation (177), finding these were not secured by the mortgage or properly proven.

Claims for repairs and renovations were also dismissed due to insufficient evidence.

The court found Hilson was entitled to recover her initial $170,000 investment plus simple interest, subject to credits from the power of sale of the mortgaged units.

Evans was not entitled to a credit for Hilson's settlement with her former lawyer, Reiber, as there was no evidentiary basis to link that recovery to the guaranteed debt.

Further submissions were invited for final calculations, interest adjustments, and costs.

Following a successful summary judgment motion for wrongful dismissal, the plaintiff sought $60,000 in partial indemnity costs.

The defendant argued the amount was excessive and proposed $39,519.26.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, noting the plaintiff's success and the moderate complexity of the matter.

Finding the plaintiff's counsel's hourly rate and hours spent to be somewhat high, the court fixed costs at $50,000 inclusive of disbursements and HST.