R. David House

Randy Calmusky, as executor, brought an application to determine entitlement to joint bank accounts and a Registered Income Fund (RIF) held by his deceased father, Henry Calmusky, with his twin brother, Gary Calmusky.

Randy also claimed occupation rent and other expenses against Gary for his use of estate assets.

The court applied the presumption of resulting trust from Pecore v. Pecore to both the joint accounts and the RIF beneficiary designation, finding that Gary failed to rebut the presumption that these assets belonged to Henry's estate.

Consequently, Gary was ordered to pay the proceeds of these accounts to the estate.

However, the court dismissed the claim for occupation rent against Gary, finding no unjust enrichment due to Gary's early intention to purchase the property and the estate's significant financial gain from the property's increased value.

Gary was held liable for a limited amount of other expenses related to his use of estate assets.

This endorsement addresses the plaintiff's request for partial indemnity costs following a successful motion for answers to undertakings and waiver of privilege.

The court found the plaintiff was justified in bringing the motion, and the defendants' resistance unnecessarily complicated the proceedings.

Applying Rule 57.01(1), the court awarded the plaintiff partial indemnity costs and assessed disbursements.

The plaintiff former employee brought a motion to compel the defendant employer to answer questions refused on discovery and produce documents over which the defendants claimed solicitor-client privilege.

The defendants had produced certain emails between their lawyer and a senior employee in their affidavit of documents and answered questions about them on discovery, later claiming the disclosure was inadvertent.

The court found the disclosure was not inadvertent and that the defendants could not selectively waive privilege to support their defence of acting in good faith while withholding other communications on the same issue.

The motion was granted, and the defendants were ordered to produce all related communications.

Following a written motion by several defendants to transfer the proceeding to another county, which was granted, the court determined the appropriate quantum of costs.

The moving parties sought $3,000 in costs and argued the motion was unnecessary because the action had been commenced in the wrong venue.

The court held that commencing the action in the original venue was permissible under Rule 13.1.01(2) of the Rules of Civil Procedure and rejected the suggestion that the motion should necessarily have been consented to.

The court found the time claimed for the motion disproportionate and reduced certain disbursements.

Costs were assessed at $1,500 all inclusive payable by the plaintiff.

The moving party sought leave to appeal an order granting advance costs to plaintiffs in treaty land entitlement litigation involving the size of a reserve under Treaty 9.

The motion judge had found the plaintiffs met the Supreme Court of Canada test for advance costs and ordered the costs initially shared between the federal and provincial defendants, subject to later adjustment.

The court held there was no reason to doubt the correctness of the motion judge’s application of the three‑part test for advance costs or her discretionary decision to award them.

The allocation of costs between the governmental defendants was reasonable at this preliminary stage.

Leave to appeal was denied because the issues were fact‑driven and did not raise matters of public importance or legal development.

Following a prior decision in favour of the plaintiffs on a motion, the court addressed the quantum of costs payable.

The plaintiffs sought approximately $174,000 in costs on a partial indemnity basis, while the federal defendant argued that $75,000 was reasonable.

The court considered the substantial evidentiary record, the importance of the motion, and the extensive preparation required to establish a meritorious claim related to Indigenous rights litigation.

Balancing these factors, the court fixed costs at $125,000 inclusive of disbursements and taxes.

The costs award remained subject to possible re‑adjustment between the governmental defendants at trial.