Russell Kronick

The applicant sought to prove a lost will where the original could not be found after the testator's death.

The next-of-kin respondents argued that the presumption of intentional destruction by the testator had not been rebutted, which would result in an intestacy.

The court reviewed the testator's organized nature, her consistent statements affirming the sole beneficiary, and her understanding of the consequences of intestacy.

The court found sufficient evidence to rebut the presumption of revocation and admitted a copy of the will to probate.

The appellant appealed a costs decision.

The Court of Appeal varied the order on consent to clarify that no post-judgment interest was payable.

The Court dismissed the remaining grounds, finding that while the motions judge erred in stating costs should be assessed without regard to the settlement amount, the assessment officer erred in law by concluding that costs could not exceed the settlement amount based on proportionality.

The appeal was allowed in part.

Following an appeal with divided success, the court issued a costs endorsement.

No costs were ordered between the appellants and the Crown.

The appellants were ordered to pay costs of $5,000 each to the respondent Diocese of Sault Ste.

Marie and the respondent Jesuit Fathers of Upper Canada.

The appellants, comprising children of residential school attendees and estates of deceased attendees, appealed an order striking their claims against the federal Crown and other defendants.

The Court of Appeal allowed the appeal in part, reinstating the secondary plaintiffs' claim for breach of fiduciary duty against the federal Crown, finding it was not plain and obvious that the duty did not extend to them despite not being born at the time of the alleged breaches.

However, the Court upheld the striking of the Family Law Act claims, as the Act does not operate retroactively, and the estate claims, which were statute-barred under the Trustee Act.

On an appeal from the dismissal of a rule 21.01(3) motion, the court considered whether a corporation incorporated after the vendor's repudiation of a real estate agreement could adopt a pre-incorporation contract under s. 21 of the Business Corporations Act and sue for damages.

The court held that s. 21 replaces the common law and must be interpreted as a self-contained statutory scheme.

A contract falling within s. 21(4) remains a nascent statutory contract before adoption, and after incorporation the corporation's adoption operates retroactively to the date of the agreement.

Accepted repudiation terminated only future performance, not accrued obligations, so there remained a contract capable of adoption.

The corporation adopted the contract by commencing the action and therefore had status to enforce it.

The deceased applied for life insurance, paid a premium, and received a conditional insurance agreement.

He died before a policy was issued or his insurability was determined.

The insurer denied the widow's claim, arguing insurability was a condition precedent to coverage.

The Supreme Court of Canada held that the agreement provided interim insurance subject to defeasance, applying the contra proferentem rule to the contract of adhesion.

The Court also found the insurer failed to meet the onus of proving the deceased was uninsurable at the time of application.

The appeal was dismissed.

The respondent subcontractor entered into a construction contract containing a clause waiving its mechanics' lien rights.

When the contractor failed to make progress payments, constituting a fundamental breach, the respondent treated the contract as at an end and filed a lien.

The Supreme Court of Canada affirmed that the question of whether an exclusionary clause applies following a fundamental breach is a matter of construction of the contract.

The Court held that the waiver clause ceased to bind the respondent upon the fundamental breach, and section 5(1) of the Mechanics' Lien Act did not foreclose the lien irrespective of the fate of the contract.