Orie Hertzog Niedzviecki

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 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 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 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.

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.

The appellant appealed a Superior Court judgment dismissing her claim for professional negligence and breach of contract against real estate agents on the basis that the action was statute barred under section 5(1)(b) of the Limitations Act, 2002.

The underlying dispute arose from the sale of a property in 2008-2009, with the appellant alleging that the real estate agents improperly induced her to sign a counter-offer and presented it against her instructions.

The appellant commenced the action in 2015, claiming she only discovered her claim during an examination for discovery in March 2015.

The Court of Appeal upheld the dismissal, finding that the appellant should have known of her claim well before commencing the action, particularly after obtaining a real estate licence and taking real estate courses that would have put her on notice to make further inquiries.

The defendants moved for summary judgment to dismiss the plaintiff's action for negligence and breach of contract, arguing the claim was statute-barred.

The plaintiff alleged negligence by real estate agents regarding a right of first refusal in a 2008 property sale.

The court applied the discoverability principle under the Limitations Act, 2002, and found that the plaintiff, a licensed real estate agent, ought to have known of her claim against the real estate agents before June 12, 2013, more than two years before commencing the action in June 2015.

Consequently, the action was dismissed as statute-barred.

Following an earlier order recognizing two Singapore judgments in Ontario with costs to the applicant, the court considered cost submissions from the parties.

The court found the submissions unsatisfactory because they did not provide sufficient detail to assess the reasonableness of the time spent on specific tasks.

The applicant was directed to file a revised cost outline itemizing time spent on each task and on court attendances.

The court also required removal of time related to a prior motion where costs had already been ordered and demanded further particulars for certain disbursements.

The defendants brought a motion seeking removal of the plaintiffs’ law firm on the basis of an alleged conflict of interest arising from a lawyer who previously acted for some defendants sharing office space with the plaintiffs’ counsel and being described as “of counsel.” The moving parties argued that the physical proximity and prior involvement in related matters created a risk of confidential information being shared.

Applying the Supreme Court of Canada test from MacDonald Estate v. Martin, the court considered whether a reasonably informed person would conclude that confidential information would be used.

The court found the evidence showed separate practices, systems, and files, and that the lawyer’s involvement in the present matter had ended well before the office‑sharing arrangement.

The motion to remove the plaintiffs’ counsel was therefore dismissed.

A defendant brought a motion for security for costs under r. 56.01(1)(a), (d), and (e) of the Rules of Civil Procedure in an action by an estate seeking recovery of funds secured by a mortgage.

The moving party argued that the estate trustee ordinarily resided outside Ontario, that the trustee was a nominal plaintiff without assets in Ontario, and that the action was frivolous because it was statute-barred.

The court held that an executor cannot be personally ordered to post security for costs and that the estate possessed an asset in Ontario in the form of the mortgage.

The court further found that a payment toward the principal restarted the limitation period under s. 23(1) of the Real Property Limitations Act.

The motion for security for costs was therefore dismissed.

A long‑serving employee brought an action for wrongful dismissal and oppression after being terminated for cause following a drunk driving accident involving the employer’s vehicle.

The employee had consumed alcohol during a lunch break, drove the employer’s truck without authorization, and caused a serious rollover collision resulting in severe injuries and a criminal conviction.

The court conducted a contextual analysis of just cause, considering the employee’s 23 years of service and clean disciplinary record against the seriousness of the misconduct.

The court held that drunk driving while operating the employer’s vehicle during the course of employment constituted serious misconduct that fundamentally undermined the employment relationship.

The wrongful dismissal claim was dismissed and the court declined to address mitigation or the oppression claim.

A contractor sued a homeowner for unpaid renovation invoices totalling approximately $40,996.60 after deducting payments already received.

The homeowner counterclaimed alleging defective workmanship and sought the cost of demolishing and redoing the work.

The court found that the renovation contract lacked clarity regarding the scope of work, that the parties ignored key contractual procedures such as written change orders, and that the invoices did not reliably establish the work performed.

Evidence showed deficiencies in tile installation, but the homeowner failed to prove the cost of remediation with admissible or reliable evidence.

Because neither party established their claims on the balance of probabilities, both the action and the counterclaim were dismissed.