Ross F. Earnshaw

The plaintiff and defendant are siblings disputing the estate of their late mother, who died leaving over $21 million in assets.

The mother had historically treated her children equally in her estate planning.

In May 2013, she executed a new will leaving 75% of her estate to the defendant and 25% to the plaintiff.

Subsequently, between August 2013 and September 2014, the mother executed numerous documents that effectively transferred all her wealth to the defendant, primarily through a joint investment account with a right of survivorship, and disinherited the plaintiff entirely.

The plaintiff challenged the validity of the May 2013 will and the subsequent documents, alleging lack of testamentary capacity and undue influence.

The court found that the mother had testamentary capacity throughout.

However, the court concluded that the post-August 2013 documents and inter vivos gifts were procured through the defendant's undue influence and were therefore invalid.

The court upheld the May 2013 will as valid and ordered that the assets transferred to the defendant be held in a resulting trust for the estate, to be distributed 75% to the defendant and 25% to the plaintiff.

The applicants sought to set aside a land transfer from Robert Graham to his daughter, Elizabeth Graham, for nominal consideration, and to set aside an Order to Continue.

The court found that the transfer violated the terms of a 1960 agreement which required prior written consent from other owners for any alienation of a share, including inter vivos gifts to family members.

The court rejected the respondent's arguments that the agreement only applied to third parties, that consent was unreasonably withheld, or that the agreement was unenforceable under the Land Titles Act.

The applicants' motion was granted, the transfer was declared invalid, and the Order to Continue was set aside.

The plaintiff, Pixiu Solutions Inc., discontinued its action against the three defendants: Canadian General-Tower Limited, CGT Shanghai Trading Co. Ltd., and CGT Changshu Co. Ltd. The defendants subsequently brought a motion to fix their costs of the action on a partial indemnity basis.

The plaintiff argued for a total costs award that would result in a "wash" against a prior costs order in its favour.

The court considered the factors under the Courts of Justice Act and Rule 57.01, including the reasonable expectations of the unsuccessful party and the necessity of separate counsel for distinct legal entities.

The court reduced the claimed costs for Changshu and Canadian General-Tower Limited due to disproportionality and time spent on issues not involving them, but allowed Shanghai's claim in full.

The aggregate costs awarded to the defendants were found to be proportionate and within the plaintiff's reasonable expectations.

This costs endorsement addresses the issue of costs following a motion for directions.

The plaintiff, Pixiu Solutions Inc., was deemed the successful party on the motion.

The defendants' offer to settle did not qualify under Rule 49.10 of the Rules of Civil Procedure because it included a proviso regarding the mode of examination of a witness, making it not capable of acceptance without further agreement.

Consequently, Pixiu Solutions Inc. was awarded partial indemnity costs.

The plaintiff brought an action against the defendant and its foreign subsidiaries for breach of a supply agreement.

The foreign subsidiaries brought motions to dismiss or stay the action for lack of jurisdiction.

The plaintiff brought a motion for directions to examine witnesses pursuant to Rule 39.03 prior to the hearing of the jurisdiction motions.

The court allowed the plaintiff to cross-examine one witness and examine another, finding that the proposed evidence was possibly relevant to the issue of whether a contract connected with the dispute was made in Ontario, a presumptive connecting factor for jurisdiction.

Following a judgment in favour of the landlord regarding the termination of a commercial lease upon a request to assign, the landlord sought costs of $15,098.45 on a substantial indemnity basis or $9,928.16 on a partial indemnity basis.

The tenant argued that the case involved a novel issue with no prior Ontario case law and suggested costs be limited to $5,000.

The court found that while the landlord was successful and entitled to costs, the tenant had a good argument on a novel issue.

The court fixed costs at $5,000, noting the tenant's failure to file its own bill of costs diminished its argument on reasonable expectations.

This was a costs ruling following a discovery motion in which the defendants were successful.

The plaintiff conceded the defendants' entitlement to costs and did not object to the amount claimed.

The court awarded the defendants their requested costs of $9,212.36, consisting of fees and disbursements found to be fair and reasonable.

This was a costs decision following a successful bifurcation motion by the defendants in a large misfeasance in public office action.

The plaintiff conceded entitlement, hourly rates, and disbursements, but argued that time spent preparing an affidavit was excessive for a procedural motion.

The court declined to second-guess successful counsel's preparation time, finding the affidavit materially helpful and the hours not grossly excessive.

Applying proportionality and reasonableness principles, the court allowed the defendants' bill of costs in full.

On a defence motion in a municipal misfeasance in public office action arising from a federal environmental assessment of a highway project, the court granted leave to conduct discovery of the plaintiff by both written interrogatories and oral examination under Rule 31.02.

The court held that the plaintiff's particulars were largely a regurgitation of the pleadings and that, given the breadth of allegations against numerous individual defendants, written interrogatories would efficiently clarify the specific bad faith and illegality allegations made against each defendant.

The court rejected the plaintiff's fairness objections and accepted that a combined process could reduce duplication, narrow oral discovery, and move the long-delayed action toward trial.

Costs were left for written submissions.

The plaintiff municipality moved to bifurcate a tort action alleging misfeasance in public office arising from a federal environmental assessment order affecting a highway project.

The court held that Rule 6.1.01 permits bifurcation only with the consent of the parties and therefore ousted jurisdiction to order separate liability and damages hearings over objection.

In any event, applying pre-rule bifurcation principles and the Air Canada factors, the court found the liability and damages issues were intertwined because proof of misfeasance required proof of resulting harm.

The motion was dismissed.

The tenant applied for a declaration requiring the landlord to permit assignment of a commercial lease in connection with the sale of a restaurant business.

The lease required landlord consent to assignment, prohibited unreasonable withholding of consent, but also allowed the landlord to terminate the lease if assignment was requested, subject to the tenant's right to withdraw the request and reinstate the lease.

Applying contractual interpretation principles and adopting the reasoning in an Alberta decision addressing analogous lease language, the court held the termination right was an additional contractual option that did not conflict with the consent provision.

The application was dismissed.

The plaintiff bank sued to recover $494,425 obtained by the defendant Vincenzo Storr through fraudulent credit card cash advances.

The plaintiff sought to trace the funds into the accounts of Vincenzo's family members and related entities, arguing they were subject to a constructive trust.

The court found that Vincenzo obtained the funds by fraud and that the family members who received the funds were liable under the doctrine of knowing receipt, as the circumstances ought to have put them on inquiry.

The court granted judgment against Vincenzo and the family members who received the funds, while dismissing the claims against the corporate entities.

A costs endorsement following a motion in construction-related litigation involving multiple parties.

The court held that two parties were entitled to independent representation on the motion but found the motion unnecessary because the governing law was clear.

Although the responding parties had a right to bring the dispute before the court, the court emphasized that unsuccessful litigants cannot expect to avoid meaningful cost consequences.

Substantial indemnity costs were declined, and proportionality concerns were considered due to the relatively small claims involved.

Costs were fixed at $5,903.60 for each successful party, payable by the opposing parties in equal shares.

Following an unsuccessful estate application brought by the executor, the successful responding beneficiaries and a corporate trustee sought costs.

The court considered the Rule 57 factors governing costs awards, including the reasonableness of the fees sought and the amount an unsuccessful party could reasonably expect to pay.

Although both respondents were entitled to partial indemnity costs, the court reduced the corporate trustee’s claimed fees due to proportionality concerns and its more limited role in the litigation.

The court ordered that the costs be paid personally by the executor rather than from the estate, emphasizing that the estate should not bear the expense of unsuccessful litigation pursued by a trustee.

The plaintiffs invested in worthless start-up companies on the advice of their financial advisor, who was registered to sell mutual funds through the appellant dealer.

The advisor promoted these off-the-books investments openly from his office.

The trial judge found the dealer liable in negligence for failing to supervise the advisor and vicariously liable for his actions, concluding he was an employee rather than an independent contractor.

The Court of Appeal dismissed the dealer's appeal, upholding the findings that the dealer breached its duty to supervise its mutual fund sales agent and was vicariously liable for his wrongdoing.

An estate trustee applied to remove a corporate co-trustee from administering an estate that held valuable Muskoka cottage property subject to life interests.

The applicant argued the corporate trustee obstructed efforts to obtain a reverse mortgage to fund repairs and maintenance after the estate’s capital maintenance fund was exhausted.

The court applied the established test for removal of trustees, emphasizing that a testator’s choice of trustee should not be lightly interfered with and that removal requires clear necessity and must promote the welfare of beneficiaries.

The proposed borrowing arrangement was vague and risked depleting the trust asset while primarily benefiting the life tenant at the expense of residual beneficiaries.

The court concluded that the applicant failed to demonstrate that removal of the corporate trustee was necessary or that it was the only viable course.

The appellant appealed a trial judge's finding that the respondent did not engage in fraudulent concealment when it failed to distribute estate assets upon the death of a life tenant.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that unconscionable conduct by the respondent was essential to the claim and had not been established.

The court noted the appellant knew of her entitlement in 1978 and could have discovered the estate assets with reasonable efforts.

Following a Rule 21.01(1) motion to strike portions of a statement of claim alleging civil conspiracy and misappropriation of funds, the court previously struck the claim entirely against one defendant while granting leave to amend as against other moving defendants.

The parties provided costs submissions.

The plaintiff indicated its intention to bring a Rule 59.06 motion seeking reconsideration and leave to amend the pleadings against the defendant whose claim had been struck.

The court held that the differing procedural positions of the defendants could affect the proper assessment of costs and that determining costs immediately risked a potentially inequitable or duplicative award.

The court therefore adjourned the determination of costs until after the anticipated Rule 59.06 motion.

Following dismissal of a motion seeking declarations and partial summary judgment based on res judicata, issue estoppel, and abuse of process in a civil action alleging misfeasance in public office, the court determined costs.

The moving party had sought numerous orders asserting that findings from a prior Federal Court decision conclusively established elements of liability against federal officials involved in an environmental review of a highway project.

The court held the motion was overly complex, repeatedly amended, and entirely unsuccessful.

Applying Rule 57.01 of the Rules of Civil Procedure and principles from appellate authorities, the court concluded that the defendants’ claimed costs were modest given the scale and duration of the proceedings.

Costs of $309,844.95 were awarded to the defendants.

The moving defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of the statement of claim alleging civil conspiracy and knowing receipt.

The plaintiff alleged that certain defendants participated in a scheme involving inflated pricing of asbestos encasement products supplied to a hospital project, resulting in breaches of contractual and fiduciary duties.

The court reviewed the elements required to plead civil conspiracy and knowing receipt and concluded that the pleadings lacked essential factual allegations supporting either cause of action.

The allegations were largely speculative and failed to establish concerted unlawful conduct or knowledge of misappropriated trust funds.

The court struck the impugned pleadings, granted leave to amend for most defendants, and struck the claim entirely against one defendant without leave to amend.