Peter Askew

The applicants challenged the validity of a purported will dated September 10, 2020, allegedly made by Kenneth Ryan Hill, a wealthy status Indian and permanent resident of the Six Nations of the Grand River Reserve.

The will named the respondent, Mr. Hill's son, as executor and left his interest in Grand River Enterprises (worth approximately $38 million) to him, with bequests of $5 million to each of his other children (except two who received nothing or $3 million).

The applicants argued that Mr. Hill did not sign the will and did not know and approve of its contents.

The court found that the respondent failed to establish that Mr. Hill signed the purported will and that suspicious circumstances surrounded its execution.

The court also found that the respondent failed to prove that Mr. Hill knew and approved of the will's contents.

The purported will was declared invalid both under the Indian Act and at common law.

The estate trustee of Frieda Holzgethan's estate sought the court's opinion, advice and direction regarding the interpretation of the residue clause of the testator's will dated December 22, 1997.

The testator had five siblings and one child (Magrid), who predeceased the testator.

The residue clause directed distribution to the five siblings per stirpes.

Four siblings predeceased the testator; one (Hilda Oswald) survived but later died.

The court interpreted the residue clause to distribute the estate equally among the five siblings' family branches (stirps), with each predeceased sibling's share passing to their lineal descendants.

The court rejected the argument that the entire residue should pass to Hilda Oswald as the sole surviving sibling.

The court also awarded the estate trustee's costs of $32,878.87 payable from the estate.

The applicant brought a motion for directions in an estate dispute, seeking the production of the deceased's medical, solicitor, and police records, as well as leave to examine the deceased's solicitors.

The applicant challenged a 2022 codicil that appointed the respondent as sole estate trustee, alleging lack of capacity and undue influence.

The court dismissed the request for additional medical records, finding no evidence to support a fishing expedition.

The court partially granted the request for solicitor records, ordering production of the 2019 estate planning file but protecting files related to a 2006 fraud action and a 2009 will.

The court also ordered the production of unredacted police records regarding domestic disputes at the deceased's home.

The applicants brought a motion to remove Tiffany Jean as Estate Trustee of the Estate of Warren Nelson Holbrook and for an interpretation of the Hotchpot Clause in Mr. Holbrook’s Will.

The court dismissed the motion to remove the Estate Trustee, finding that the applicants had not met the high threshold for removal, despite ongoing family friction and concerns about conflict of interest regarding a family business (Rejenmor).

The court provided directions for the future of Rejenmor, requiring its windup or sale within two years.

Regarding the Hotchpot Clause, the court adopted the Estate Trustee's interpretation, which treated lifetime advances to beneficiaries as gifts rather than loans requiring repayment, resulting in an unequal distribution where only one beneficiary would receive a residual share.

Grand River Enterprises Six Nations Ltd. (GRE) appealed an order from the Superior Court of Justice requiring it, as a non-party, to produce financial documents for the valuation of shares held by a deceased in estates litigation.

The Court of Appeal dismissed the appeal, affirming the motions judge's discretionary decision.

The court found the documents relevant to the estate's valuation and the validity of the deceased's will, and that it would be unfair to proceed to trial without them.

The Court of Appeal upheld the motions judge's application of the Rule 30.10 test, emphasizing deference to the lower court's discretion and the effectiveness of the established Confidentiality Protocol in addressing GRE's concerns about privacy and business interests.

The applicant, William David George Whitfield, initiated a Will Challenge against the estate of Tamara Leigh Whitfield, alleging lack of testamentary capacity and undue influence by the respondent, Donald Murray Glover.

The respondent moved to dismiss the challenge, while the applicant cross-moved for production of medical records and preservation of a Facebook account.

The court found that the applicant failed to meet the minimum evidentiary threshold for both lack of capacity and undue influence, dismissing the Will Challenge.

Consequently, the applicant's cross-motion was rendered moot and dismissed.

Costs were awarded against the applicant, with a portion payable from the estate and a portion personally.

The respondent estate trustee moved for leave to sell the estate's principal asset, a 10-acre homestead, to pay debts and avoid ongoing costs.

The applicant sibling opposed the sale, seeking instead to sever the property into two 5-acre parcels to keep her half in kind, and brought a late cross-motion to appoint an Estate Trustee During Litigation (ETDL).

The court adjourned the cross-motion to ensure a fair evidentiary record and declined to authorize the sale immediately, instead ordering a case conference to establish terms for the applicant to present a fully costed severance plan.

This is a costs endorsement following an unsuccessful application by the applicants.

The respondents, Nick Giannopoulos and Panagiota Papastefanou, were entirely successful.

Nick Giannopoulos was awarded partial indemnity costs from the applicants, with the estate indemnifying the remainder of his costs as he was an estate trustee upholding the will.

Panagiota Papastefanou was awarded substantial indemnity costs due to the applicants' reprehensible litigation conduct, including character vilification and publicizing privileged communications.

The Children's Lawyer, representing minor respondents, was awarded full indemnity costs from the estate, reflecting a fair sharing of necessary costs for protecting the children's interests.

The applicants, adult siblings, sought a declaration that their late father lacked capacity or was unduly influenced when he executed a new will in 2021 that favoured their brother.

They brought a motion for directions and production of the deceased's medical, legal, and financial records.

Applying the minimal evidentiary threshold from Neuberger v. York, the court found that the applicants failed to adduce credible evidence of incapacity or undue influence.

The court noted that the applicants' evidence consisted largely of conjecture, cherry-picked medical records, and unsupported allegations against the father's caregiver.

The motion and application for directions were dismissed.

This endorsement addresses costs following a guardianship application where the Public Guardian and Trustee (PGT) was appointed as guardian for Phary Saing.

The applicant, Konthear Saing, sought substantial indemnity costs against Sokly Saing and a non-party, Vothy Saing.

Sokly Saing and Phary Saing also sought costs.

The court found Phary Saing's offer to settle invalid due to the PGT's non-consent.

It declined to award costs against non-party Vothy Saing due to lack of notice and failure to meet the legal test.

The court ordered Sokly Saing to pay Konthear Saing $15,000 in partial indemnity costs, citing Sokly Saing's more significant conflict of interest and problematic conduct.

Konthear Saing and Sokly Saing were also ordered to each pay $282.50 to the PGT for its fees.

The costs of a prior capacity assessment motion were reserved to the judge hearing the balance of the main application.

This application concerned whether an "Aviva Bond" valued at $123,558.64 formed part of a deceased's estate or was a gratuitous inter vivos gift to two of her daughters.

The applicant, one of the deceased's four daughters and a co-estate trustee, sought a declaration that the bond was an estate asset and an order for its repayment.

The respondents, including the two daughters who received the bond, argued it was a gift.

The court found strong evidence that the deceased intended the bond as a gift, thereby rebutting any presumption of resulting trust.

The application was dismissed, and costs were awarded against the applicant, with a blended cost order for the responding estate trustee.

The applicant moved to be appointed as litigation guardian and guardian of property for her sister, the respondent, in the context of an underlying application regarding the ownership of a shared property.

The respondent was assessed by a designated capacity assessor and found incapable of managing property and highly susceptible to undue influence.

The court found that the respondent required a litigation guardian and a guardian of property.

Due to severe family acrimony and conflicts of interest among the siblings regarding the property dispute, the court declined to appoint any family member.

Instead, the court appointed the Public Guardian and Trustee as both litigation guardian and guardian of property.

The plaintiff brought a motion to amend the court's previous reasons for judgment, noting the defendant admitted the market value of the subject condominium unit was $470,000.

The court granted the motion to amend but rejected the plaintiff's substantive claim for $219,600 in damages for loss of opportunity.

The court held that damages for a lawyer's negligence and breach of contract in a failed real estate transaction should be assessed at the date of the breach, not at a subsequent date, as no special circumstances warranted displacing the general rule.

The plaintiff sued his former real estate lawyer for negligence and breach of fiduciary duty following a failed pre-construction condominium purchase.

The lawyer failed to communicate effectively with the plaintiff's mortgage broker and, without instructions, retracted a proposed closing date and requested a further extension, causing the builder to terminate the transaction.

The court found the lawyer negligent for failing to follow instructions, which did not require expert evidence to establish.

The plaintiff was awarded $62,739.71 in liquidated damages, but his claim for loss of opportunity was dismissed due to a lack of expert appraisal evidence.

The claim for breach of fiduciary duty was also dismissed as the lawyer's actions lacked disloyalty or dishonesty.

The respondents in a will challenge brought a motion for the production of the applicant's psychiatric records, arguing the records might contain evidence supporting their limitation period defence.

The court dismissed the motion, applying the Ryan test for privilege.

The court found the records were highly confidential, of questionable relevance, and that the harm to the applicant's mental health and ongoing psychiatric treatment outweighed any potential benefit to the litigation.

The applicant brought a motion seeking an order that her sister, the respondent, undergo a capacity assessment.

The underlying application involved a family dispute over the ownership of a residential property and concerns that the respondent, who has lifelong cognitive limitations, was vulnerable to undue influence by another sibling.

Applying the factors from Abrams v. Abrams, the court found reasonable grounds to believe the respondent was incapable and that an assessment was necessary to determine if she required a litigation guardian and a guardian of property.

The motion was granted, and the respondent was ordered to submit to a capacity assessment.

The applicants sought substantial indemnity costs after successfully obtaining a declaration that their tenancy was residential, not commercial, thereby establishing the Landlord and Tenant Board's exclusive jurisdiction over the remaining issues.

The court declined to award elevated costs, finding that the applicants' offers to settle did not engage Rule 49.10 consequences and the respondent's conduct, while concerning, did not meet the threshold for reprehensible, scandalous, or outrageous behavior warranting substantial indemnity.

However, the court deemed it appropriate to award the applicants partial costs for the emergency injunction and the preliminary jurisdictional ruling, considering the work done and the modest amount at stake, ultimately awarding $12,000.

The applicant sought a declaration that their tenancy was governed by the Residential Tenancies Act (RTA) and to continue an interim injunction against lockout.

The respondent sought a declaration that the Commercial Tenancies Act (CTA) applied and an order for possession.

The court applied the "predominant purpose" test under RTA s. 5(j) and s. 202, considering all circumstances including the actual use of the premises, the parties' intentions, and the landlord's knowledge.

The court found the tenancy's predominant purpose was residential, thus the RTA applied, and the Landlord and Tenant Board had exclusive jurisdiction.

The respondent failed to discharge the burden of proving the s. 5(j) exemption.

The plaintiff, Voysus Connection Experts Inc., initiated an action alleging fraud and other breaches against former employees.

Voysus obtained an ex parte Mareva injunction against two defendants, Tayyab Shaikh and Anisha Shaikh, which was subsequently dismissed due to Voysus's failure of full and frank disclosure.

Voysus's motion to strike certain evidence from the defendants was also dismissed, though a confidentiality order was issued.

This endorsement addresses the costs of both motions.

The defendants sought substantial indemnity costs for the Mareva motion and costs for the motion to strike.

The court found that while Voysus's conduct warranted reproach, the defendants' conduct also unnecessarily increased costs.

The court awarded the defendants partial indemnity costs of $70,000.00 for the Mareva motion and ordered each party to bear their own costs for the motion to strike, concluding that the motion to strike was misconceived due to the defendants' actions.

The plaintiff employer brought a motion to continue an ex parte Mareva injunction against two former employees, alleging they engaged in fraudulent schemes involving payroll and expense accounts.

The plaintiff also moved to strike certain evidence produced by the defendants, including surreptitious recordings and confidential documents.

The court dismissed the motion to strike, noting that illegally obtained evidence may be admissible in civil proceedings, but ordered the defendants to maintain the confidentiality of the documents.

The court dismissed the motion to continue the Mareva injunction, finding that the plaintiff failed to make full and frank disclosure on the ex parte motion and failed to demonstrate a real risk of dissipation of assets.