Peter Liston

This decision resolves an application for directions regarding the administration and distribution of the estate of Yvonne Chieffallo.

The court confirms Elisa Chieffallo and Patrick Briggs as estate trustees, orders equal distribution of the residue among the named beneficiaries, and determines that certain assets (the Valley Drive property, Courtyard Crescent property, and a BMO account) do not form part of the estate.

The court also addresses the doctrine of renunciation and intermeddling, the presumption of resulting trust, and the allocation of proceeds from the sale of a vehicle.

The plaintiffs sought to consolidate a 2023 action with a related 2021 action involving overlapping parties and issues arising from an “Estate Freeze” transaction.

The court found that both actions shared common questions of fact and arose from the same series of transactions, and that consolidation (or hearing the actions together) would avoid multiplicity of proceedings, inconsistent findings, and unnecessary costs.

The court ordered the actions to be heard together or one after the other, subject to the trial judge’s directions, and awarded costs to the plaintiffs.

The court dismissed the applicant's motion to strike the respondent's pleadings and for other relief, finding such an order would be disproportionate given the circumstances.

While there was imperfect and late compliance with court orders, new counsel had recently produced substantial disclosure, and most outstanding disclosure was sufficiently explained.

The court ordered costs of $3,000 payable by the respondent to the applicant and made procedural orders to streamline the matter toward resolution or trial.

The applicant brought an urgent motion seeking an order for their incapacitated 86-year-old mother to move into a memory care suite at a retirement residence, while one respondent advocated for a long-term care facility.

The court found no urgency and, to resolve the impasse between the siblings acting as powers of attorney, appointed the respondent who had primarily cared for the mother as the sole power of attorney for personal care regarding the mother's placement.

Additionally, the court ordered the sale of the mother's home, appointing the applicant as the sole power of attorney for property for the sale, subject to agreement on terms and disposal of personal property.

This decision addresses a costs endorsement following a successful summary judgment motion by the defendants, which dismissed the plaintiffs' claim for anticipatory breach of an agreement of purchase and sale.

The court awarded costs of $50,000 to the defendants, including a previous $4,000 award.

The court considered factors such as the outcome, complexity, parties' conduct, and proportionality, reducing the defendants' requested amount due to duplication of effort and the plaintiff's partial success in adding a party, though this success was ultimately deemed a "pyrrhic victory" given the dismissal of the main action.

The defendants moved for summary judgment to dismiss the plaintiff's claim, arguing that the plaintiff (Stayside Corporation Inc.) lacked standing under the Agreement of Purchase and Sale (APS) and that the APS was terminated due to the purchaser's (6773711 Canada Inc.) anticipatory breach.

The plaintiff opposed, arguing that a trial was necessary due to factual and credibility issues, and sought to add 6773711 Canada Inc. as a party.

The court granted the order to add 6773711 Canada Inc. as a party, finding special circumstances existed despite the expiry of the limitation period.

However, the court ultimately granted summary judgment dismissing the plaintiff's claim, concluding that 6773711 Canada Inc.'s prolonged and consistent delays in obtaining the necessary severance amounted to an anticipatory breach of a fundamental term of the APS, justifying its termination.

The court also found no genuine issue requiring a trial regarding specific performance, as the plaintiff failed to demonstrate readiness, willingness, and ability to close, or that the property was unique.

The defendants, Cyndric Group Inc., brought a motion to discharge a Certificate of Pending Litigation (CPL) registered by the plaintiff, Stayside Corporation Inc., on a property subject to an agreement of purchase and sale.

The court granted the discharge of the CPL, finding that the plaintiff failed to prosecute the action with reasonable diligence, which was a sufficient singular ground.

Additionally, the court considered the equities, noting the plaintiff's corporate status (a dissolved numbered company, 677 Canada, being the original party to the agreement, and Stayside's lack of activity) against the defendants' long-standing interest in developing the property.

The court ordered the CPL discharged but imposed a term requiring the defendants to preserve 50 acres of the property pending the outcome of the main action.

This appeal concerned a family law dispute arising from the breakdown of an 18-year relationship, focusing on decision-making responsibility, parenting time for their child, and allegations of family violence.

The appellant mother challenged the trial judge's order for joint decision-making, arguing a lack of effective communication and a failure to properly consider family violence.

She also appealed the costs award.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that joint decision-making was in the child's best interests despite communication challenges, that family violence allegations were thoroughly considered and rejected, and that the costs award was a proper exercise of discretion.

The Estate Trustee of Jean Marie Hayduk sought the court's determination regarding the validity of a will's disposition of a Registered Retirement Income Fund (RRIF) and whether it revoked an earlier beneficiary designation.

The will contained a misdescription of the RRIF account.

The court applied the *falsa demonstratio non nocet* principle to correct the misdescription, finding the testator's intent clear despite the error.

The court further held that under section 52(2) of the *Succession Law Reform Act*, the later designation in the will implicitly revoked the earlier designation by instrument due to inconsistency, even without an explicit revocation clause meeting section 52(1) requirements.

The application was granted, confirming the will's disposition and the revocation of the prior designation.

The Applicant, successful in an oppression application under the Canada Business Corporations Act, sought substantial indemnity costs after recovering a modest $14,555.34.

The court assessed the Applicant's costs outline, which included two offers to settle.

The first offer was deemed invalid for costs consequences under Rule 49.11 as it was not made to all jointly and severally liable defendants and was not unilaterally controllable.

The second offer, while made to both respondents, was structured in a way that required an ad hoc assessment of costs, making it difficult to determine if the result was better than the offer.

Emphasizing proportionality given the modest recovery and the significant costs incurred by the Applicant (including multiple lawyers), the court awarded a proportionate sum of $20,000, all inclusive, payable jointly and severally by the Respondents, significantly less than the Applicant's claim.

Following a family law trial where the respondent father was largely successful on the dominant issue of parenting, he sought costs of $54,000.

The applicant mother argued costs should be limited to $1,000 due to her limited ability to pay and partial success on property issues.

The court found the mother's conduct unreasonable, particularly her persistent refusal to share parenting and her unfounded allegations of family violence.

After considering the mother's severable offer on debts and her ability to pay, the court ordered the mother to pay fixed costs of $45,000 to the father.

The parties separated after an 18-year relationship.

The mother sought sole decision-making responsibility and primary residence of their 9-year-old child, while the father sought joint decision-making and equal parenting time.

The court found that both parents were fit and capable, and that the mother's allegations of family violence against the father were largely unsubstantiated or did not warrant a parenting order in her favour.

The court ordered joint decision-making and primary residence with the mother due to the child's established life in Renfrew, but granted the father significant parenting time.

The court also ordered the division of the matrimonial home and equalization of property, and directed the father to pay Guideline child support.

The applicant, a minority shareholder in a closely-held corporation operating a minor hockey tournament, sought an oppression remedy against the two other shareholders.

The respondents, dissatisfied with the applicant's performance, attempted to force him to sell his shares and subsequently dissolved the corporation to exclude him while continuing the business through a new entity.

The court found that the respondents breached their fiduciary duties to the corporation and acted oppressively by dissolving the corporation for the improper purpose of eliminating the applicant.

The court awarded the applicant special damages based on the agreed valuation formula and general damages for the oppressive conduct.

The respondents brought a motion to strike an oppression remedy application under Rule 21.01(1)(b), arguing the applicant trust lacked standing, the respondents were not affiliates under the OBCA, the claim offended the rule in Foss v. Harbottle, and the applicant had no reasonable expectation regarding the respondents.

The court found that while a trust is not a justiciable entity and the respondents were not affiliates, the rule in Foss v. Harbottle did not strictly bar the claim due to the closely held nature of the corporation.

However, the application failed to plead facts establishing a reasonable expectation vis-à-vis the third-party respondents.

The motion to strike was granted, but the applicant was given 45 days to amend the pleadings.

The applicant, Dennis Marchand, brought a motion to add Christine Denis and 8766177 Canada Inc. as parties to an existing oppression remedy application under section 241 of the Canadian Business Corporations Act.

Marchand alleged that the original respondents, Stuart Graham and David Harroch, dissolved their shared company (7104383 Canada Inc.) and subsequently operated a new hockey tournament through Christine Denis's company (8766177 Canada Inc.).

The court dismissed the motion, finding no evidence that Denis or 8766177 Canada Inc. were involved with the original corporation or were affiliates, thus lacking a foundation for a cause of action under section 241 of the CBCA against them.

The respondent, Anita Larwill, an Estate Trustee, brought a motion seeking an order to sell a residential property of the Estate due to the non-cooperation of another beneficiary.

The court determined that the requested relief could not be granted on this motion, as a previous order required an application for partition and sale as the proper procedural step.

However, the court granted Anita extensions of time to bring the required application for partition and sale and to distribute the remaining bequests and residue of the Estate.

The court noted the non-cooperation of one beneficiary and the potential for further adverse costs awards.

The plaintiffs brought a motion for partial summary judgment against the defendants, a construction company and its principals, seeking a refund of $76,228.02 based on an account statement provided by the defendants.

The defendants argued the statement was a settlement offer subject to privilege and did not constitute an admission.

The court found the account statement to be an admission and not subject to settlement privilege, as there was no clear intent to settle or "without prejudice" designation.

Applying the Hryniak v. Mauldin test, the court granted partial summary judgment to the plaintiffs for the requested amount, plus costs.

Following a family law motion involving interim support and property-related relief, the respondent sought partial indemnity costs of $8,000 plus HST.

The court reviewed the parties’ relative success, noting that both parties achieved some relief while failing on other claims, including competing requests for exclusive possession, support, and insurance-related orders.

The court considered the factors under Rule 24 of the Family Law Rules, including success, reasonableness of conduct, and offers to settle.

Although the respondent made a reasonable settlement offer, it was not signed by counsel and was not delivered within the required time period.

Given the evenly divided success and procedural deficiencies in the offer, the court declined to award costs.

Costs decision following a family law motion to change.

The applicant was entirely successful on the motion and sought costs on a substantial indemnity basis exceeding $21,000, while the respondent requested that no costs be awarded.

The court applied Rule 24 of the Family Law Rules, finding the successful party was presumptively entitled to costs but that neither party had acted in bad faith and the issues were not complex.

Considering the parties’ conduct, the financial circumstances of both parties, and the applicable jurisprudence, the court declined to award substantial indemnity costs and fixed costs on a partial indemnity basis.