Richard K. Watson

The applicant, as Estate Trustee, sought a declaration that a Henson trust (the Jasmine Trust) created by the respondent lawyer for the benefit of one of the estate beneficiaries was void.

The lawyer had prepared the trust documents naming the Estate as settlor and his own professional corporation as trustee, and transferred estate property to it without the applicant's knowledge or intention.

The court found the trust void and of no force and effect due to a lack of certainty of intention, certainty of objects, and the professional corporation's lack of capacity to act as a trustee.

The court ordered the trust assets, including a condominium, to be conveyed back to the Estate and awarded full indemnity costs against the respondents due to the lawyer's egregious conduct.

The respondents brought a motion to remove the applicant's counsel, alleging a conflict of interest because counsel acted for the applicant personally, as Estate Trustee, and for the Estate, and arguing counsel might become witnesses.

The court dismissed the motion, finding that counsel acts for the Estate Trustee, not the Estate, and there was no evidence of a conflict or that counsel would need to testify.

The court also ordered the respondents to provide outstanding disclosure, pay $15,000 in costs thrown away for a previously adjourned hearing, and directed that any proceeds from the sale of a disputed condominium be paid into court.

The applicant sought an accounting of estate assets, including a commercial property and a joint trading account, from his brother and co-estate trustee.

The respondent claimed the trading account was gifted to him by their late mother and resisted accounting for the property.

Applying the presumption of resulting trust, the court found the trading account belonged to the estate and ordered a full accounting.

Due to the breakdown in the brothers' relationship and inherent conflicts of interest, the court ordered the appointment of an Estate Trustee During Litigation (ETDL) and made declarations regarding several disputed inter vivos transfers.

Following a guardianship trial where success was divided, the applicants sought full indemnity costs of the proceeding and costs of three interlocutory motions.

The court found that while the applicants were more successful than the respondents, their insistence on unworkable care plans and the parties' mutual animosity unduly lengthened the proceeding.

The court denied enhanced costs and costs of the interlocutory motions, awarding the applicants partial indemnity costs fixed at $56,760.72.

Following the dismissal of the applicant's motion to recuse the judge for bias, the responding party, Falconers LLP, sought its costs.

The applicant had relied on an unsworn complaint to the Canadian Judicial Council containing serious, unsubstantiated allegations against the court.

The court held that costs should follow the event and that the responding party was reasonably required to attend the motion.

Costs were awarded to the responding party on a partial indemnity basis in the amount of $3,165.

The applicant brought a motion asking the case management judge to recuse himself from an upcoming costs hearing, alleging a reasonable apprehension of bias.

The applicant relied solely on the fact that she had filed a complaint against the judge with the Canadian Judicial Council, alleging sexist and racist remarks during a previous appearance.

The court dismissed the motion, finding that the mere filing of a complaint, without cogent evidence to support the allegations, is insufficient to displace the presumption of judicial impartiality.