Sarah Joyce Draper

Randy Calmusky, as executor, brought an application to determine entitlement to joint bank accounts and a Registered Income Fund (RIF) held by his deceased father, Henry Calmusky, with his twin brother, Gary Calmusky.

Randy also claimed occupation rent and other expenses against Gary for his use of estate assets.

The court applied the presumption of resulting trust from Pecore v. Pecore to both the joint accounts and the RIF beneficiary designation, finding that Gary failed to rebut the presumption that these assets belonged to Henry's estate.

Consequently, Gary was ordered to pay the proceeds of these accounts to the estate.

However, the court dismissed the claim for occupation rent against Gary, finding no unjust enrichment due to Gary's early intention to purchase the property and the estate's significant financial gain from the property's increased value.

Gary was held liable for a limited amount of other expenses related to his use of estate assets.

The appellant, Julie Lawrence, appealed the order of the motion judge regarding the disposition of her late father's estate.

The central issue was whether a $50,000 TD line of credit taken out prior to the deceased's marriage to the respondent (the estate trustee and second wife) was a debt of the estate or secured against the matrimonial home.

The motion judge found the estate liable for the debt.

The appellant also alleged the motion judge demonstrated a reasonable apprehension of bias and improperly refused an adjournment.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the factual findings, no reasonable apprehension of bias, and no improper exercise of discretion regarding the adjournment or costs award.

This case involved two applications concerning the estate of Leslie Salga, primarily disputing the ownership of the matrimonial home.

The Salga applicants (daughters of the deceased) sought a declaration that a joint tenancy between their father and his wife, Karen Marley, was severed, allowing Leslie Salga's half-interest to pass through his will to them.

Karen Marley sought a declaration of sole ownership by right of survivorship or, alternatively, an increased share due to unjust enrichment and capital improvements.

The court found that the joint tenancy was severed by a "course of dealing" between Leslie Salga and Karen Marley, evidenced by the will and a recorded conversation, establishing a tenancy in common.

Consequently, Leslie Salga's half-interest became part of his estate.

The court dismissed the Salga applicants' request to force the immediate sale of the property, upholding Karen Marley's life interest as per the will.

Karen Marley's claims for unjust enrichment and capital improvements were also dismissed.

The plaintiffs sought summary judgment for outstanding payments for solar panel installation work and dismissal of the defendants' counterclaim.

The defendants counterclaimed for damages due to alleged negligence and breach of contract by the plaintiffs.

The court granted partial summary judgment in favour of two individual plaintiffs (Ian Poss and Scott Oliver) for their claims, dismissing the counterclaims against them, finding no genuine issue for trial regarding their work.

However, summary judgment was denied for the corporate plaintiffs due to substantial factual conflicts and credibility issues requiring a full trial.

The court also declined to pierce the corporate veil of the defendant corporations.

Property owners brought an application seeking a declaration that they could enforce obligations under a private road maintenance agreement and compel mediation or arbitration regarding disputes about maintenance.

The respondents argued there was no privity of contract because the applicants were not parties to the same agreement.

The court held that the developer’s scheme of entering identical agreements with each purchaser, combined with an enurement clause binding successors and assigns, demonstrated an intention that the purchasers benefit from and enforce the obligations relating to road maintenance.

Alternatively, the court found the circumstances satisfied the third‑party beneficiary test articulated by the Supreme Court of Canada.

The applicants were declared entitled to rely on the agreement and to require mediation or arbitration concerning road maintenance disputes.

The applicant sought to quash a municipal by-law imposing a two‑kilometre setback for industrial wind turbines from any “property” as defined in the by-law.

The court held that the definition of “property,” which included property lines, vacant land, structures, and inhabitants “of all species,” rendered the by-law unintelligible and incapable of consistent interpretation.

Because the measuring point for the setback requirement was unclear, developers could not determine where turbines could legally be located.

The by-law was therefore invalid for vagueness and uncertainty.

The court further observed that, even if valid, the by-law could become inoperative where it conflicted with provincial renewable energy legislation and regulations.

The applicant sought an order compelling the municipality to issue a building permit for a parcel created through a series of intra-family conveyances designed to circumvent the Planning Act.

The court examined whether the parcel constituted a valid lot and whether the municipality could refuse the permit under the Building Code Act on the basis of contravention of other applicable law.

The court held that the initial conveyances forming the root of title were fraudulent and constituted a deceit upon the Planning Act because the purported vendors were never owners of the land.

As a result, the deeds were invalid and could not create a valid chain of title or be cured by the 40‑year rule, Planning Act statements, or subsequent conversion to land titles.

The court concluded that the building permit application was the “fruit from the poisoned tree” and refused to grant relief.