Ronald N. Brady

This is an appeal from a motion judge's decision to dismiss an action for damages related to alleged improper transactions undertaken by the respondents while administering an estate.

The appellants raised three grounds of appeal: errors in credibility assessment, reliance on inadmissible hearsay, and an incorrect finding that respondents could act as attorneys under a Power of Attorney (POA) while the principal was still capable.

The Court of Appeal dismissed all grounds, affirming the motion judge's credibility findings, finding no reliance on inadmissible hearsay, and confirming that the standard form POA allowed attorneys to act before incapacity, as it had no conditions or postponed effective date.

Full indemnity costs were awarded to the respondents due to the appellants' frivolous allegations.

The appellant sought to overturn an application judge's order enforcing a settlement agreement concerning estate matters, including jointly held bank accounts.

The Court of Appeal applied a two-step test to determine if an agreement to settle existed and if it should be enforced.

The court found no palpable and overriding error in the application judge's finding that a clear, unequivocal, and unambiguous settlement had been reached and should be enforced.

The appeal was dismissed, and costs were awarded to the respondent.

The applicants, the estranged wife and children of the deceased, brought an application against the respondents, the executors of the deceased's estate.

The deceased had changed the beneficiary designation on his life insurance policy and an RRSP shortly before his death, which the applicants alleged breached a separation agreement.

The applicants sought immediate payment of the life insurance proceeds and an order that the RRSP proceeds be paid into court.

The court declined to order immediate payment or payment into court, noting potential limitation issues and a lack of evidence regarding the deceased's competence, but ordered the trustees to pass their accounts within 90 days and maintain the insurance proceeds in investment for support payments.

This endorsement addresses the issue of costs following a prior motion where the applicants sought further relief, which was largely denied, and the executors (respondents) were ordered to pass accounts and restrict insurance disbursements.

Both parties sought costs.

The court found the respondents were successful on the costs issue, noting the motion's necessity stemmed from the applicants' unsupported claims.

The respondents, as trustees, were entitled to actual costs from the estate, and the applicants were ordered to partially indemnify the estate by paying $5,000 in costs to the estate.

This costs endorsement followed a decision on two motions.

The respondent, Linda Jean Leliever, unsuccessfully moved to strike the applicant's claim for an accounting under Rule 14.09, which the court found was an inappropriate attempt to use a summary judgment procedure in an application.

The applicant, Paul Stephen Stefanchuk, successfully moved to amend pleadings, a motion that should have been consented to.

The applicant was entirely successful on both motions.

The court awarded the applicant partial indemnity costs, fixed at $20,095, payable by Linda Jean Leliever within 90 days, finding that while Leliever's motion was ill-advised, it was not improper enough to warrant full indemnity costs.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiffs' claims, rescind an Agreement of Purchase and Sale (APS), and recover a $5,000 deposit.

The dispute arose from the plaintiffs' alleged failure to disclose a license agreement with Trillium Railway Co. Ltd. for a 17-foot strip of land, which included significant property improvements, prior to the execution of the APS.

The plaintiffs asserted they disclosed this information before the APS, while the defendants claimed they learned of it much later.

Applying the Hryniak v. Mauldin framework, the court weighed the evidence, including email communications and party conduct, and found the plaintiffs' claim of early disclosure not credible.

The court concluded that the plaintiffs' failure to disclose the Trillium agreement constituted deliberate misrepresentation, entitling the defendants to rescind the APS.

Summary judgment was granted in favour of the defendants, dismissing the plaintiffs' claims, terminating the APS, and ordering the return of the deposit with interest.

Following a three-day trial where the applicant unsuccessfully opposed the approval of the respondent's accounts as attorney and executrix for their father's estate, both parties sought costs.

The court found no reason to order costs from the estate.

As the respondent was entirely successful, the court ordered the applicant to pay partial indemnity costs fixed at $20,000.

The creditor son served a Notice of Garnishee on the debtor father's lawyers, who were holding funds in trust to discharge a mortgage owed to the son.

The garnishee brought a motion for directions.

The court declared the garnishee invalid, finding that funds deposited with a law firm in trust with specific instructions do not create a debtor-creditor relationship between the firm and the client, and therefore are not subject to garnishment.

The father was permitted to discharge the mortgage, and interest was suspended due to the son's oppressive conduct.