Robin A. Lepere

This decision addresses costs following a four-day trial where the applicant, JMS, was awarded a net recovery of $34,249.30 after a set-off for the respondent's, Bell's, successful counterclaim.

Both parties sought costs, but no Rule 49 offers attracted formal cost consequences.

Despite the trial judge's initial statement of divided success, the court found JMS to be the successful party for costs purposes, having succeeded on 85% of its claim compared to Bell's 9% counterclaim success.

Bell's offer was deemed not "sufficiently close" to JMS's recovery to trigger cost consequences.

The court fixed costs payable by Bell to JMS at $37,500 plus HST and disbursements.

This is an appeal from a bankruptcy order against River Green (Thunder Bay) Inc. The appellant, John Beals, a shareholder, argued that the bankruptcy application by BNL Contracting Ltd. was brought for an improper purpose, relying on section 43(7) of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the rejection of the improper purpose allegation as speculative.

The court emphasized the highly deferential standard of review for discretionary decisions under section 43(7) and noted the appellant's failure to cross-examine the respondent's principal on the alleged conspiracy.

The plaintiff, a construction company, sued the defendant for unpaid services and materials related to a renovation project.

The defendant counterclaimed for breach of contract, poor workmanship, and lost rental income.

The court found no binding fixed-price contract, determining it was a time and materials project.

While the plaintiff's hourly rate was deemed reasonable, the claimed hours were reduced due to discrepancies.

The defendant's counterclaim for deficiencies was partially successful for poor workmanship in the bathrooms, but claims related to electrical panel, hot water tank, furnace, and lost rental income were dismissed due to the defendant's instructions for cost-cutting or her own responsibilities.

The plaintiff was awarded a net amount after set-off for the successful portion of the counterclaim.

The estate trustee sought directions regarding the administration of an estate and the sale of a property bequeathed to a common-law spouse.

The central issue was whether a clause in the will, stating "It is my wishes that when KELLY CHRISTIANSEN HASSETT sells/otherwise dispose of the Home, twenty (20%) percent of the proceeds shall form part of the residue of my estate," created a legally binding trust or merely a moral obligation.

The court applied the "armchair rule" for will interpretation and found that the language used was precatory, creating only a moral obligation, not a trust.

Consequently, the estate trustee could not compel the sale of the property based on this clause.

The court ordered costs for both parties to be borne by the estate due to the ambiguity in the will.

The appellant, as litigation administrator of her father's estate, appealed the dismissal of an action concerning an alleged unauthorized property transfer and a personal costs award.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the property transfer was authorized, for valuable consideration, and that the action was statute-barred.

The court also dismissed the costs appeal, affirming the personal costs award against the appellant due to her unreasonable conduct and pursuit of litigation primarily for personal benefit based on unsubstantiated fraud allegations.

This estate matter concerned the determination of legal fees to be paid from the estate of Frank Frederick Moore to Gail Patricia Hannula, a respondent and Frank's sister/power of attorney.

The underlying estate dispute had been settled, with a prior court order stipulating that legal fees for both the applicant (Frances Moore) and the respondent (Gail Patricia Hannula) would be indemnified by the Estate, either by agreement or court order.

The motion addressed the quantum of fees for Gail, who sought $35,000.

The applicant argued for $10,000 to $14,000.

The court found Gail's requested fees excessive due to duplication of effort, costs incurred from non-compliance with a prior order, expenses related to a contempt motion, and inflated charges for executor work.

The court ordered the Estate to pay Gail Patricia Hannula $14,000, inclusive of HST and disbursements, and directed the balance of trust funds to Frances Moore.

The court also provided commentary on efficient motion practice, including the appropriate use of compendia and time estimates for short motions.

The plaintiff brought a motion to strike the Statement of Defence and Counterclaim of the defendant corporation, Smart Renovation Solutions Ltd., and for judgment.

The corporation's "directing mind" had been repeatedly denied leave to represent the corporation, and the corporation failed to retain counsel or pay outstanding costs awards.

The court found the corporation's persistent refusal to retain counsel analogous to a failure to comply with Rule 15.04(6), invoking Rule 15.04(7), and struck the defence in the interest of justice due to the resulting delay and increased costs for the plaintiff.

This motion for judgment sought to enforce an alleged settlement agreement in two related estate litigation actions concerning the estate of Beatrice Labrash.

The first action involved the Estate seeking to recover real property transferred to the deceased's son, Grant Labrash, by right of survivorship.

The second action was a challenge by Grant to the validity of the deceased's 2010 Will.

The court found that a settlement was reached between Grant and Derrick Lamarche, in his personal capacity and as Estate Trustee of Beatrice's Estate.

However, the settlement's enforceability was complicated by a crucial term involving the sale of a property (20 Park Crescent) that had been transferred to Hellan Lamarche personally and subsequently to her Estate Trustees (Derrick, Bradley Lamarche, and Annette Fishwick).

The court could not find that Bradley and Annette, who were not parties to the litigation and not clients of Derrick's counsel, had agreed to the settlement.

Consequently, the motion for judgment was denied without prejudice, allowing the moving party to seek further submissions on the court's authority to bind Hellan's Estate to the settlement.

The applicant, Gary William Craib, brought a motion seeking interim orders to restrain the respondent, James Alexander Craib, from exercising authority over assets of their father, Stanley William Craib, and their late mother, Anne Elizabeth Craib's estate.

Gary alleged dissipation of assets by James.

James opposed the motion, arguing Gary lacked standing.

The court dismissed Gary's motion, finding he lacked standing and the motion was premature.

The court directed the Public Guardian and Trustee to arrange legal representation for Stanley to assess his capacity and address issues related to the mother's estate and the power of attorney for property.

The plaintiff, a renovation company, brought a motion seeking a Certificate of Pending Litigation (CPL) against a residential property owned by the defendant, who was the mother-in-law's son-in-law.

The plaintiff claimed over $200,000 for renovation services and materials provided to the property.

The defendant asserted the work was deficient and had listed the property for sale.

The court dismissed the motion, finding that the plaintiff's claim was for money damages arising from a construction contract, not for an interest in land.

The court held that the plaintiff's failure to perfect its construction lien rights could not be circumvented by seeking a CPL or by invoking equitable remedies like constructive trust, as this would subvert the statutory scheme of the Construction Lien Act.

This judgment concerns an application for a bankruptcy order against River Green (Thunder Bay) Inc. The court previously determined that the alleged debt to the applicant creditor, BNL Contracting Ltd., was bona fide.

The remaining issues were whether River Green committed an act of bankruptcy within six months of the application and whether the application was brought for an improper purpose.

The court found that River Green had ceased to meet its liabilities generally, satisfying the act of bankruptcy requirement.

The court dismissed the respondents' argument that the application was brought for an improper purpose, finding their evidence speculative and noting the debtor's inability to manage its affairs.

A bankruptcy order was granted, and a trustee appointed.

Costs were awarded against the opposing parties.

This endorsement details a case management/trial management conference held via Zoom.

Counsel reported progress in preparing for trial, including exchanging statements of agreed facts, Scott Schedules, and documents.

They are considering pleading amendments and the use of affidavits for evidence-in-chief to shorten the trial.

The parties agreed to be placed on a trial list and to conduct a further pre-trial/trial management conference before Justice Fitzpatrick, who previously held a case management role.

The court ordered the matter to be placed on a running list for trial commencing October 10, 2023, for four days by Zoom, with the running list to be spoken to on October 4, 2023.

A further pre-trial/trial management conference before Fitzpatrick J. is to be scheduled before the end of June.

The applicant First Nation sought an interpleader order to pay a construction holdback fund into court due to multiple adverse claims from subcontractors, a garnishee, and the Canada Revenue Agency (CRA).

The court granted the interpleader, finding that the fund was neither the property of the general contractor (Razar) nor a debt payable to Razar, based on the contract terms and the Construction Act's trust provisions.

Consequently, the priority claims of the garnishee and CRA were dismissed as premature, as their claims depended on the fund being the general contractor's property.

The defendant corporation sought leave under Rule 15.01(2) of the Rules of Civil Procedure for a non-lawyer shareholder, officer, and director to represent it in the litigation.

The plaintiff opposed, raising concerns about increased costs and delays due to the proposed representative's lack of legal understanding.

The court dismissed the motion, finding that the proposed representative did not adequately grasp the legal issues, and the defendant failed to demonstrate financial incapability to retain counsel.

The court also upheld a previous costs order against the defendant, finding its submissions to be an unwarranted attack on opposing counsel rather than focusing on costs principles.