Peter W. G. Carey

The applicants challenged the validity of their late father's 2015 Will, alleging lack of testamentary capacity, suspicious circumstances, and undue influence by his common-law spouse, the respondent.

The testator executed the new Will shortly after a terminal cancer diagnosis, leaving his half-interest in the jointly owned home to the respondent, while his children still received his RRSPs and vehicle.

The court declined to convert the application to a trial, finding the documentary record sufficient.

The court held that the applicants failed to rebut the presumption of testamentary capacity, as the circumstances surrounding the Will's execution were not suspicious and there was no evidence of undue influence.

The application was dismissed and the 2015 Will was declared valid.

This endorsement addresses the issue of costs following a successful motion by the defendants.

The defendants sought $200,000 in costs, arguing it was a discount from their partial and substantial indemnity costs, citing extensive motion records, witness evidence, cross-examinations, and rejected settlement offers.

The plaintiff requested costs be reserved to the trial judge or argued the claimed costs were excessive, noting their own partial indemnity costs were significantly lower.

The court declined to reserve costs, affirming the defendants' entitlement as successful parties.

However, the court found the defendants' claimed costs excessive, noting they were double the plaintiff's costs, and fixed the costs at $150,000, all-inclusive, payable within 30 days, emphasizing the need for costs to be reasonable in the circumstances.

The plaintiff, a former franchisee, brought a motion for summary judgment against the franchisor and its principal, alleging deficiencies in disclosure documents, fraud, and forgery, and seeking damages over $2,000,000.

The defendants opposed the motion, arguing numerous factual disputes and credibility issues.

The court dismissed the motion for summary judgment, finding that the case involved too many disputed issues of fact, including allegations of fraud and forgery, which required an assessment of credibility that could not be resolved on a paper record.

The court also noted that a complex legal issue regarding the effect of a notice of rescission required a full appreciation of the factual matrix, best achieved at trial.

The plaintiff, a Starbucks franchisee, sought an urgent interlocutory injunction to prevent the defendants (landlords) from interfering with its use of a "Disputed Space" essential for its operations at Hotel X. The defendants sought to terminate the tenancy, asserting the plaintiff was trespassing on the Disputed Space, which was not explicitly included in the lease but was built out and paid for by the plaintiff.

The court applied the R.J.R. MacDonald test, finding a prima facie case, irreparable harm to the plaintiff, and that the balance of convenience favored granting the injunction, subject to terms regarding rent and sharing of the space.

The court determined the fair market value of the applicant's shares and the costs of the proceeding following a successful oppression application.

The court rejected the respondents' liquidation approach to valuation, preferring a going-concern adjusted book value approach, and fixed the share value at $668,674.

The court awarded substantial indemnity costs to the applicant and counter-respondents, citing the respondents' incivility, excessive posturing, and unfounded allegations of fraud.

The Canadian Imperial Bank of Commerce (CIBC) sought an interpleader order under Rule 43 of the Rules of Civil Procedure for approximately $25.7 million CAD and $69,000 USD.

These "Disputed Funds" were held in accounts related to cryptocurrency transactions facilitated by Costodian Inc. for QuadrigaCX, with some funds transferred to Jose Reyes's personal accounts.

CIBC froze the accounts due to an inability to determine the rightful entitlement among 388 depositors, Costodian, Reyes, Billerfy, and QuadrigaCX, and concerns about money laundering.

The respondents opposed the application, arguing there were no competing claims.

The court found a real foundation for competing claims, both among the respondents themselves and from the depositors, particularly noting the refusal of QuadrigaCX's CEO to confirm if depositors' online wallets had been credited.

The interpleader order was granted, directing the funds to be paid into court, but the court declined to extinguish CIBC's potential liability for its actions in freezing the accounts.

The applicant, a co-founder and equal shareholder of Boothworks Inc., was dismissed and removed as a director and officer by the other two co-founders.

The applicant sought a fair market value purchase of his shares, alleging oppression.

The respondents counter-applied, alleging breach of fiduciary duty and seeking damages for loss of a major client (Spin Master) that had a personal relationship with the applicant.

The court found that the respondents' actions constituted oppression, as they unfairly disregarded the applicant's reasonable expectations of equality in the company.

The court dismissed the counter-application, finding no breach of fiduciary duty by the applicant or other counter-respondents, as the client relationship was personal to the applicant and not an asset of Boothworks.

The court ordered the respondents to purchase the applicant's shares at fair market value, with specific valuation guidelines.

The appellant appealed a motion judge's decision to vary a Mareva injunction granted in favour of Trade Capital against The Cash House.

The motion judge allowed Maple Trust to seize funds in a specific account under a writ of seizure and sale.

The appellant argued that a temporary stay should have been granted to allow it to trace stolen funds into the account.

The Court of Appeal dismissed the appeal, finding that even if a serious issue regarding tracing could be demonstrated, the balance of convenience favoured Maple Trust, which had acted in good faith in obtaining its judgment and pursuing execution.

The appellant's Mareva injunction gave it no proprietary interest in the funds, and there was no basis for the third party to suffer prejudice.

The plaintiff sought an interim injunction against former employees and their new competing business, alleging breach of a confidentiality and non-solicitation agreement.

The court found the plaintiff established a prima facie case of breach, but dismissed the motion because the plaintiff failed to show it would suffer irreparable harm that could not be compensated by damages.

The moving party, an employee of the invoice payor, brought a motion for summary judgment to dismiss the fraud action against him.

The plaintiff factoring company was defrauded of millions of dollars through fictitious invoices.

The moving party claimed his identity was stolen by the fraudsters to confirm the fake invoices and that he was also a victim.

The court dismissed the motion, finding that conflicting evidence regarding the moving party's emails, his financial ties to the fraudulent payee, and credibility issues among the co-defendants created genuine issues requiring a trial.

The plaintiff, Trindent Management Consulting Inc., brought a motion for particulars of two paragraphs in the defendants' (Carpedia International Ltd. et al.) statement of defence and counterclaim.

The defendants alleged that Trindent's president, Adrian Travis, improperly took and used Carpedia's confidential and proprietary information when he left to start Trindent.

The defendants argued that the particulars were within Travis's knowledge and not necessary for Trindent to plead.

The court granted the motion, finding that particulars were necessary to enable Trindent to prepare a defence, delineate the scope of productions and discoveries, and define the issues for trial, rejecting the argument that the information was solely within the plaintiff's knowledge.

This endorsement addresses scheduling and the presiding judge for summary judgment motions brought by two defendants, Frank Zito and Alan Keery.

The judge, appointed under Rule 37.15 to hear all motions in the action, extended a deadline for one defendant's materials and established a new timetable for the motions.

However, citing policy considerations akin to those in Rule 50.10(1) and the Court of Appeal's decision in Royal Bank of Canada v. Hussain, the judge declined to hear the summary judgment motions because the plaintiff did not provide written consent as required by Rule 37.15(2) for a Rule 37.15 judge to preside over a trial-like proceeding.

The judge will continue to hear procedural motions in the action.

Maple Trust Company, a non-party, successfully moved to vary a Mareva order and subsequently sought costs.

The Plaintiff, Trade Capital Finance Corp., opposed the costs award, arguing for no costs or a significant reduction due to the novelty of the legal point involved in the motion.

The court acknowledged the novelty of the issue but determined that a complete denial of costs was inappropriate.

Applying principles from various precedents, the court awarded Maple Trust Company reduced costs, balancing the novelty of the legal question with the need to partially indemnify the successful party.

The plaintiff, Trade Capital Finance Corp., obtained a Mareva injunction over the assets of certain defendants, including The Cash House Inc. (TCHI), in a fraud action.

Maple Trust Company, a non-party, had obtained writs of seizure and sale against TCHI for unrelated costs awards.

Maple Trust moved to vary the Mareva injunction to permit it to seize funds from one of TCHI's bank accounts.

The court granted the motion, holding that a Mareva injunction is not proprietary in nature and does not give the plaintiff priority over other bona fide creditors enforcing legal process.

The injunction merely restrains the defendant from disposing of assets, not preventing lawful seizure by other creditors.

The respondent, Trade Capital Finance Corp., alleged it was defrauded of approximately $6.5 million in a scheme involving the purchase of fictitious accounts receivable.

The majority of lost funds were deposited into bank accounts owned by the appellant, The Cash House Inc., a financial services company.

Trade Capital obtained a Mareva Order freezing assets and ordering financial disclosure.

The appellants were found in contempt for intentionally operating Cash House through a bank account owned by a related entity (2454904 Ontario Inc.) in violation of the Mareva Order, and for failing to produce required documents.

The motion judge sentenced Osman Khan to 90 days imprisonment and struck Cash House's statement of defence and crossclaim.

The appellants appealed, arguing the Mareva Order was ambiguous and that the sanctions were excessive.

The Court of Appeal dismissed the appeal, finding the Mareva Order sufficiently clear and the sanctions justified by the appellants' persistent non-compliance.

The appellants appealed a judgment declaring the respondent the legal and beneficial owner of 20% of the appellant company.

The appellants argued the respondent breached a trust agreement with his deceased father-in-law regarding a home purchase, which should block the share transfer.

The Divisional Court agreed with the application judge that the trust issue was irrelevant to the share ownership and that any claim under the trust agreement was statute-barred by limitation periods.

The appeal was dismissed.

The plaintiff brought a motion to enforce answers to questions refused on cross-examination and a motion to adduce fresh evidence, following an adjournment of an underlying motion to vary a Mareva order.

The non-parties sought costs for the adjournment and the motions.

The court found the non-parties were mostly successful overall and awarded them costs on a partial indemnity basis, fixing the amounts at $9,610 for one non-party and $4,310 for the other after assessing the reasonableness of the claimed fees.

The plaintiff, Trade Capital Finance Corp., brought a motion to compel Carlo De Maria to answer questions from his cross-examination on an affidavit supporting a motion by non-parties 2454904 Ontario Inc. and Red Quest Holdings Inc. to vary a Mareva Injunction.

The plaintiff also sought to admit fresh evidence related to banking activities of The Cash House Inc. and DoUknow Inc. The court granted the motion to admit fresh evidence to the extent it supported compelling an answer to one specific question (Q121) regarding DoUknow Inc.'s operating capital, finding it relevant to the true value of The Cash House Inc. shares and the proposed transaction.

All other questions and undertakings from the May 17, 2016 cross-examination were dismissed, as were undertakings from a November 25, 2015 cross-examination, which were deemed moot.

The plaintiff sought an adjournment of a motion brought by non-parties to vary an interim Mareva injunction.

The adjournment was requested to allow the plaintiff to compel answers to undertakings and refusals from an affiant whose affidavit supported the motion to vary.

The court granted the adjournment, applying established principles for judicial discretion in granting adjournments, emphasizing the overall objective of a just determination on the merits and the need for the plaintiff to adequately prepare its opposition.

The applicant sought a declaration under the oppression remedy of the Business Corporations Act that he was the legal and beneficial owner of 20% of the shares in the respondent company.

The shares were previously owned by his deceased spouse, who died intestate.

The respondents refused to transfer the shares, alleging that the applicant and his deceased spouse had breached a trust agreement regarding a real estate transaction years earlier.

The court granted the application, finding that the applicant was absolutely entitled to inherit the shares under the Succession Law Reform Act, and that the alleged breach of trust was both unrelated to the share entitlement and statute-barred under the Limitations Act, 2002.