Philippa Geddie

This decision addresses the costs of a defendant's motion to dismiss an action, which resulted in the Statement of Claim being struck with leave to amend.

The defendant sought partial indemnity costs, arguing that the plaintiff's initial Statement of Claim was deficient and failed to raise a tenable cause of action.

The court found the defendant's requested costs reasonable, noting the plaintiff's failure to respond to costs submissions and the deficiency of the original pleading.

The court also clarified that Rule 49 offers to settle did not apply as the action was not dismissed, and pro bono services were not a factor in costs assessment.

The defendant brought a motion to dismiss the plaintiff's claim for breach of contract, induced breach of contract, and abuse of process.

The plaintiff, a landlord, sought damages after the defendant, a tenant, did not vacate a residential unit by the closing date of a sale, leading to the plaintiff's inability to deliver vacant possession.

The court, relying on the Residential Tenancies Act as a complete code, found that the plaintiff's claims as pleaded could not succeed because the defendant had statutory rights to remain until an eviction order was made, and the plaintiff had not pleaded that the defendant failed to abide by such an order.

The motion to strike the Statement of Claim was granted, but the plaintiff was given leave to amend.

This appeal was dismissed as moot following the death of one of the appellants, Mary Zammit.

The parties agreed that Rule 11 of the Rules of Civil Procedure did not apply.

The Public Guardian and Trustee was awarded costs for an unsuccessful stay application brought by Mary Zammit and for the appeal, fixed at $5,000 all inclusive.

Mary Zammit sought a stay of a lower court order that declared her incapable of managing her property, terminated a power of attorney in favour of her daughter Patricia Zammit, and appointed the Public Guardian and Trustee (PGT) as her property guardian.

The Court of Appeal, applying the three-part test for a stay from RJR-MacDonald Inc. v. Canada (Attorney General) and the gloss from Ogden Entertainment Services v. United Steelworkers of America, Local 440, found that the moving party failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured granting the stay.

The court noted the thoroughness of the motion judge's reasons, which included findings of Mary Zammit's incapacity and Patricia Zammit's breaches of fiduciary duty.

The motion for a stay was dismissed.

The applicant sought to be appointed sole guardian of property and personal care for his mother following the death of his co-guardian brother, and sought approval of an amended management plan.

The Public Guardian and Trustee opposed the plan, arguing the applicant was in a conflict of interest because he proposed that a trust for which he is trustee purchase the mother's interest in a farm property.

The court declined to dismiss the application or appoint the Public Guardian and Trustee, finding no evidence the applicant had acted against the mother's best interests.

The court granted the applicant leave to provide further details and file a further amended management plan to address the deficiencies.

The plaintiff, a judgment creditor of the estate of John Sr., brought two actions alleging that the transfer of a farm property and certain trademarks by the estate to family members and their companies were fraudulent conveyances intended to defeat its claims.

The plaintiff relied on the Fraudulent Conveyances Act and the Assignments and Preferences Act, pointing to several 'badges of fraud'.

The court dismissed the actions, finding no fraudulent intent.

The court accepted that the farm property transfer and a related mortgage were legitimate transactions to secure and repay loans made by the son's companies for farm improvements, and that the family genuinely believed the Reliable lawsuit lacked merit at the time of the transfers.