Ronald B. Moldaver

Following the determination of two estate litigation applications, the court assessed costs.

The court found that the estate trustee's application for directions on will interpretation engaged public policy considerations, entitling both parties to costs of $55,000 payable by the Estate.

Conversely, the respondent's application to remove the estate trustee did not engage public policy and was governed by the standard civil costs regime.

The respondent was ordered to pay $35,000 in partial indemnity costs to the estate trustee, who was also entitled to full indemnification of his remaining $20,000 in costs from the Estate.

Following the determination of two estate litigation applications, the court assessed costs.

The court found that the estate trustee's application for directions on will interpretation engaged public policy considerations, entitling both parties to costs of $55,000 payable by the Estate.

Conversely, the respondent's application to remove the estate trustee did not engage public policy and was governed by the standard civil costs regime.

The respondent was ordered to pay $35,000 in partial indemnity costs to the estate trustee, who was also entitled to full indemnification of his remaining $20,000 in costs from the Estate.

This case involved multiple applications concerning the estates of Leonardo and Rose La Calamita, heard together.

The primary dispute was between the deceaseds' children, John Michael La Calamita (Estate Trustee of Leonardo's Estate) and Diane Marie LaCalamita.

John sought an interpretation of Leonardo's Will to allow him to appropriate the Yonge Street Property (the main estate asset) by paying Diane a cash sum for her one-third share.

Diane opposed this, arguing it was an abuse of process, and sought John's removal as estate trustee or the appointment of a disinterested trustee for the property's sale.

Diane also objected to John's application for a Certificate of Appointment of Estate Trustee.

The court ruled that Leonardo's Will does not permit John's proposed appropriation method, specifically requiring a disinterested trustee for any private sale of estate property to a trustee-beneficiary.

However, the court dismissed Diane's claims for John's removal as trustee and her abuse of process argument.

The court also dismissed the immediate appointment of a disinterested trustee, noting it would only be necessary if a private sale were pursued.

Ultimately, the court ordered the issuance of the Certificate of Appointment of Estate Trustee to John.

This case involved multiple applications concerning the estates of Leonardo and Rose La Calamita, heard together.

The primary dispute was between the deceaseds' children, John Michael La Calamita (Estate Trustee of Leonardo's Estate) and Diane Marie LaCalamita.

John sought an interpretation of Leonardo's Will to allow him to appropriate the Yonge Street Property (the main estate asset) by paying Diane a cash sum for her one-third share.

Diane opposed this, arguing it was an abuse of process, and sought John's removal as estate trustee or the appointment of a disinterested trustee for the property's sale.

Diane also objected to John's application for a Certificate of Appointment of Estate Trustee.

The court ruled that Leonardo's Will does not permit John's proposed appropriation method, specifically requiring a disinterested trustee for any private sale of estate property to a trustee-beneficiary.

However, the court dismissed Diane's claims for John's removal as trustee and her abuse of process argument.

The court also dismissed the immediate appointment of a disinterested trustee, noting it would only be necessary if a private sale were pursued.

Ultimately, the court ordered the issuance of the Certificate of Appointment of Estate Trustee to John.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

The Court of Appeal for Ontario heard a motion for a stay of a lower court order pending appeal.

The lower court had appointed a litigation guardian and guardian of property for an incapable 100-year-old individual, removed her counsel, and ordered costs.

The moving parties (the incapable individual and her son) sought to stay this order.

The court applied the three-part test for a stay, finding no serious issue to be tried regarding the incapacity finding or the guardian's appointment, especially given prior findings of unconscionable procurement of assets by the son.

The court also found no irreparable harm would be suffered by denying the stay, as the appointed guardian is accountable to the court.

The balance of convenience favored allowing the lower court's order to take effect.

Consequently, the motion for a stay was dismissed.

The defendants brought a motion to strike the plaintiff's trial record and dismiss the action, arguing the plaintiff failed to comply with a pre-pandemic court order requiring the action to be set down for trial by June 30, 2020.

The plaintiff argued that the deadline was suspended by the provincial emergency regulation suspending limitation periods due to the COVID-19 pandemic.

The court agreed with the plaintiff, finding that the regulation suspended the filing time and that the plaintiff had filed the trial record within the appropriately calculated extended deadline.

The defendants' motion was dismissed with costs.

The moving party sought to quash an appeal by the responding party, Henia Gefen, on the grounds that it was out of time.

The Court of Appeal dismissed the motion, finding that the appeal was not out of time because the time for appeal began to run from the date the judgment was finally settled and issued (October 16, 2020), rather than the date reasons were released (October 17, 2019).

This exception applied because the judgment was uncertain on a substantive point (paragraph 5, identifying deceased's assets) which was not part of the initial summary of disposition.

The court also noted that an extension of time would have been granted in the interests of justice due to factual connection between appeals and no prejudice to the moving party.

The appellants appealed an arbitral award that found they had erected screens on exclusive-use common elements without prior board consent, contrary to condominium rules, and ordered their removal.

The appeal also concerned the arbitrator's costs award.

The Superior Court of Justice upheld the arbitrator's decision, finding the appellants were in breach of the Condominium Act, Declaration, and Rules.

The court dismissed both the appeal and the cross-appeal on costs, affirming the arbitrator's discretion.

Following a trial regarding reciprocal easements and commercial redevelopment, the court determined costs.

The plaintiffs achieved divided success, obtaining some but not all of the declaratory relief sought and failing to obtain a permanent injunction.

The court declined to make a distributive costs order, instead reducing the plaintiffs' partial indemnity costs by 50% to reflect their divided success and over-staffing, awarding them $638,804.86 against the Market Village defendants.

The Kennedy defendants were awarded $70,000 in partial indemnity costs against the plaintiffs.

Following the dismissal of the appellant's family law appeal and the respondent's cross-appeal, the respondent sought full indemnity costs of $40,872.55.

The appellant argued for costs of $7,500.00.

The court found the respondent was the successful party but declined to award full indemnity costs, finding the appellant's conduct did not warrant it.

The court reduced the hours claimed for preparation and non-appeal related work, awarding the respondent partial indemnity costs of $16,376.70.

The plaintiffs and defendants own contiguous commercial retail centres and share reciprocal easements for access and parking.

The defendants proposed a major redevelopment that would expand their building footprint onto lands subject to the plaintiffs' easement, eliminating hundreds of surface parking spaces.

The plaintiffs sought declarations and an injunction to prevent the development.

The Superior Court of Justice found that the proposed development would substantially interfere with the plaintiffs' easement rights and overburden the remaining shared parking.

The court granted specific declarations confirming the breach of the easements but declined to issue a permanent injunction, finding it unnecessary given existing structural safeguards.

The appellant father appealed a trial decision granting sole custody of the parties' child to the respondent mother and ordering him to pay child support based on an imputed income of $420,000.

The mother cross-appealed, seeking to impute an even higher income to the father.

The Superior Court of Justice dismissed both the appeal and cross-appeal, finding no palpable and overriding error in the trial judge's best interests analysis for sole custody.

The court also upheld the imputation of income, noting the father's failure to provide adequate financial disclosure regarding his solely-owned business and the significant discrepancy between his reported income and his lifestyle and expenditures.

The applicants, Calo Holdings Ltd. and Imperial Precast Corp., sought an order equalizing shareholder accounts and other remedies against the respondent, 2347186 Ontario Inc., in the context of a joint venture to operate a precast business through two corporations (2057461 Ontario Inc. and Northern Precast Corp.).

The applicants claimed Imperial was owed over $800,000 for contributions and sought payment from 205 or, alternatively, from 234 based on oppressive conduct.

The court dismissed the application, finding no agreement for overall equalization between the shareholders outside of the specific shareholder agreements for each corporation.

The court also determined that 234 did not owe money to Calo or Imperial, and therefore, 234's refusal to pay did not constitute oppressive conduct under the Business Corporations Act.

Imperial was deemed an unsecured creditor of the respective corporations, not 234.

The appellant sought to set aside an order enforcing a settlement agreement.

The appellant was a fully informed participant in the settlement, acting on legal advice, and knowingly entered into the settlement structured in the manner challenged on appeal.

The Court of Appeal found no illegality or impropriety in the enforcement of the settlement and upheld the motion judge's decision to enforce it.

The court also upheld the costs award made by the motion judge.

The appellants appealed a motion judge's decision that the respondent Pezzack Financial Services Inc. was entitled to proceeds of a mortgage action settlement held in escrow pursuant to a Notice of Garnishment.

The appellants claimed that the garnishee held the mortgage in trust for them, either as an express trust or a resulting trust.

The Court of Appeal upheld the motion judge's findings that the claimed express trust was a sham and that the circumstances did not support a resulting trust.

The appeal was dismissed with costs fixed at $10,000.00 all-inclusive.

The Estate Trustee During Litigation (ETDL) for the estate of Elias Gefen brought a motion seeking payment of his significant fees and disbursements from disputed estate assets, a priority charge on these assets, and permission for interim payments.

The motion was supported by Harry Gefen and the estate of Yehuda Gefen, and opposed by Henia Gefen, Harvey Gefen, and a non-party co-tenant.

The court found that the ETDL was entitled to payment from the 'Property Interest' (disputed assets) and a charge on it, interpreting the original appointment order broadly to include assets with contingent estate interests.

The court denied the ETDL's request to further mortgage the properties to raise funds, citing potential adverse effects on non-parties.

The ETDL was granted the right to make interim payments from available distributions, subject to a final passing of accounts.

Costs were awarded against the opposing parties personally and the balance from the Estate.

The appellant appealed a trial judgment finding him liable for payments under a family agreement.

The respondent estate cross-appealed the dismissal of its claim for return of a $13 million payment characterized as a gift.

The appellant argued that an oral agreement made after the family agreement was signed should be enforceable and would excuse his payment obligations.

The court upheld the trial judge's finding that the oral agreement preceded the family agreement and was therefore superseded by its integration clause.

The court also upheld the finding that the $13 million was a valid gift with no resulting trust.

Both the appeal and cross-appeal were dismissed with no costs awarded.

This endorsement addresses costs arising from a motion where an estate trustee during litigation was appointed.

The court rejected the suggestion to defer costs to the trial judge, affirming that costs of a motion should be dealt with by the motions judge.

Harry Gefen and the Estate of Yehuda Gefen sought costs on a substantial indemnity basis, which was declined as the court found no grounds for the higher scale based on the defence of the motion or unproven allegations.

The court also rejected the argument that costs should be denied due to refusal of dockets, finding sufficient particulars were provided.

Harry Gefen was awarded $45,000 plus HST in legal fees, plus disbursements including $35,765 for Professor Drummond's assistance and $14,725.55 for other disbursements.

The Estate of Yehuda Gefen was awarded $45,000 plus HST in legal fees and $738.12 in disbursements.

Henia Gefen and Harvey Gefen were ordered to pay these amounts within 30 days.

This endorsement summarizes the conclusions of an initial case conference, directing the parties to prepare a consent order to convert an application into an action.

The order is to outline the filing of pleadings, the use of existing affidavits and cross-examinations in lieu of discoveries, the exchange of affidavits of documents, and a case timetable.

The endorsement also addresses the responding parties' desire to bring a summary judgment motion on a limitation issue, advising them to assess its potential to substantially shorten or simplify a trial versus the risk of unnecessary delay.