Scott Charles McMahon

The plaintiffs brought a motion for summary judgment arising from the defendants' failure to close on the purchase of a residential property for $1,900,000.

The defendants admitted the breach but argued the matter was not suitable for summary judgment and that the plaintiffs failed to mitigate their damages.

The court found no genuine issue requiring a trial, holding that the plaintiffs acted reasonably in reselling the property and in settling a downstream claim from the vendors of a second property the plaintiffs could not close on due to the defendants' breach.

Summary judgment was granted for $556,535.41, comprising the difference in sale price, carrying costs, the forfeited deposit on the second property, and the settlement amount paid to the second vendor.

A stay of enforcement pending the third-party action was denied.

This is a costs decision following the dismissal of the plaintiff's unjust enrichment claim against the defendant.

The plaintiff sought compensation for alleged improvements made to property owned by the defendant during his common law relationship with the defendant's daughter.

The action was dismissed in its entirety after trial.

The defendant, having made a Rule 49 offer to settle on a without costs basis that was not accepted, sought costs on a substantial indemnity basis from the date of the offer and partial indemnity basis prior to that date.

The court awarded costs in the amount of $74,029.04, finding the plaintiff's claim was improperly conceived and pursued, and noting that the claim had been repeatedly amended during trial, creating a moving target for the defence.

The plaintiff, Texford St. Bernard, sought compensation from the defendant, June Andrews, for alleged unpaid contributions to the construction and improvement of a property at 179 Bullis Road, Brighton, Ontario.

The court found that the claim was largely statute-barred under the Limitations Act, 2002, and that the evidence did not support the plaintiff’s assertion that he was owed money for the work or expenses claimed.

The action was dismissed in its entirety.

This costs decision in an estate litigation matter addresses the modern approach to costs in estate proceedings.

The court reviews the principles from Sawdon Estate v. Watch Tower and Salter v. Salter Estate, emphasizing that costs are generally to be paid by the unsuccessful party, with the estate indemnifying the estate trustee for any shortfall.

The court finds that both parties acted reasonably in litigating the issue of a holograph will, and orders that all parties' costs be paid out of the estate, balancing fairness, proportionality, and access to justice.

The applicant sought to validate a purported holograph will that bequeathed the deceased's home and contents to her, effectively disinheriting her other children, contrary to previous wills.

The court found suspicious circumstances, including the complete lack of evidence regarding the will's creation, the significant change from prior wills, and the deceased's declining cognitive function.

The applicant failed to discharge the onus of proving the deceased's testamentary capacity and knowledge and approval of the document.

The application was dismissed.

This decision concerns a voir dire on the admissibility of an expert report in an application to determine the validity of a holograph will.

The applicant sought to validate a 2016 holograph will, while the respondents argued the deceased lacked testamentary capacity, asserting a 2012 lawyer-prepared will was the only lawful one.

The respondents retained a geriatric psychiatrist, Dr. Hermann, to provide an opinion on the deceased's testamentary capacity and susceptibility to undue influence.

The applicant challenged the report's admissibility under the Mohan test, arguing it was not necessary and that Dr. Hermann was not qualified or impartial.

The court found the report necessary to understand complex medical concepts and that Dr. Hermann was qualified and impartial, ruling the expert report admissible.

The applicants brought a preliminary motion (Seepa motion) seeking an order for document production, including medical records and lawyer's files, to ascertain the validity of the deceased's will.

They raised concerns about testamentary capacity, suspicious circumstances, and undue influence.

The respondents opposed, arguing the estate was modest and privacy interests outweighed the need for production, suggesting a resulting trust claim was more appropriate.

The court found the applicants met the low evidentiary threshold for document production, noting the deceased's age, the circumstances of will preparation by a non-lawyer relative, a prior Facebook post by a respondent indicating dementia, and alleged isolation of the applicants.

The motion was granted.

The applicant, Catherine Philbin, sought a finding that her sister, Marie Orford, breached her fiduciary duty as co-attorney for property of their late mother by misappropriating funds for personal use.

The court found Marie Orford breached her fiduciary duty by treating the mother's assets as her own, failing to keep proper accounts, residing rent-free in the mother's condominium while using estate funds for its costs, and mismanaging investments.

The court ordered Marie Orford to pay restitution and damages, removed her as co-trustee, and addressed claims against other family members who received funds.

The appellant, a garage owner, appealed a summary judgment ordering him to return $78,565.16 to the respondents for incomplete Corvette restoration work.

The motion judge had granted summary judgment, noting the appellant failed to file affidavit evidence.

However, the Court of Appeal found that the motion judge overlooked photographs presented by the self-represented appellant that depicted some work done, creating a conflict in evidence.

The Court of Appeal allowed the appeal, set aside the summary judgment and costs, and remitted the case for trial, finding that a genuine issue for trial existed.

The appellant was ordered to pay costs for wasted time due to his procedural failures.

The parties brought motions concerning custody, access, child support, and equalization.

The respondent sought to set aside a prior consent order withdrawing his claims for spousal support and property.

The court found the consent order binding, noting the respondent was represented by counsel and acknowledged the binding nature of settlement offers.

The respondent's claims for spousal support and property were struck.

The applicant was granted custody of the youngest child, and interim supervised access for the respondent was maintained for the two younger children.

Child support was ordered based on an imputed income for the respondent, and the applicant was to fund a Parenting Capacity Assessment Report with reimbursement from the respondent.

Costs were awarded to the applicant.

This costs endorsement followed a personal injury action that settled for $75,000 shortly before trial.

The court assessed the plaintiffs' claim for costs and disbursements, addressing several contested issues.

Key determinations included the compensability of adverse costs insurance premiums as a disbursement, the recoverability of disbursements related to a defaulted defendant, and the reasonableness of retaining multiple experts given the complexity and anticipated trial.

The court applied the principle of proportionality to fix the final costs and disbursements.

The defendant moved to set aside a noting in default, which occurred after the plaintiffs obtained a partial default judgment.

The default arose from the defendant's failure to deliver a restored Corvette chassis by an agreed deadline, compounded by his former lawyer's failure to inform the plaintiffs of the defendant's serious accident.

The court granted the motion to set aside the noting in default, allowing the defendant to defend the outstanding balance of the claim, but affirmed the partial default judgment.

Costs were awarded to the defendant on a partial indemnity basis.

This decision addresses costs following a successful motion by the defendants.

The defendants sought costs, but their Rule 49 offer was not strictly compliant with timing requirements.

The court found the time expended by the defendants' counsel to be excessive.

Ultimately, the court awarded the defendants partial indemnity costs, fixed at $3,300.00 for fees plus HST and $507.66 for disbursements, emphasizing the importance of reasonable expectations and a fit and just award.

The defendants moved under Rule 21 to strike the plaintiffs' statement of claim, arguing it failed to disclose a cause of action for ownership or vesting of cottage land.

The court found the statement of claim did not sufficiently plead the requirements for a gift, nor did it allege trust, proprietary estoppel, unjust enrichment, or detrimental reliance.

Given the pleadings, particularly the deceased's stated intention not to convey due to tax liability, the court concluded it was plain, obvious, and beyond doubt that the plaintiffs' claims could not succeed as pleaded.

The defendants' motion was granted.

Following a successful summary judgment ordering the defendant to vacate the plaintiff’s residence, the court addressed claims for aggravated and punitive damages, pre‑judgment interest, and costs.

The defendant had remained in the plaintiff’s home for several months without legal entitlement and failed to vacate despite receiving notice of trespass and funds to assist with relocation.

The court found the defendant’s conduct legally wrong but not malicious or outrageous enough to justify aggravated or punitive damages.

However, the defendant’s continued occupation forced the plaintiff to commence a civil action and bring a summary judgment motion.

The court therefore dismissed the damages claim but awarded the plaintiff substantial indemnity costs.