Sean Philip Lawler

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

This costs endorsement followed two applications concerning the interpretation and rectification of a will.

The court had previously dismissed the interpretation application brought by Bishop Moussa and granted the rectification application brought by Sarwat Mansour, supported by Samia Messieh.

The court applied the modern approach to costs in estate litigation, scrutinizing the conduct of the parties.

While acknowledging the initial drafting error in the will necessitated legal advice, the court found Bishop Moussa's continued pursuit of an "absurd" interpretation led to unnecessary litigation.

Consequently, Bishop Moussa was ordered to pay a significant portion of the costs incurred by Ms. Messieh and Mr. Mansour, with some allowances from the estate for initial advice related to the drafting error.

The court addressed two applications concerning the will of Sidky Nassif: an interpretation application by Bishop Moussa and a rectification application by Sarwat Mansour, the estate trustee.

The central issue was the disposition of Mr. Nassif's house, specifically whether it should pass to Bishop Moussa as part of the residue or to Mr. Nassif's brother, Shoukry Messieh, after his sister Yvonne Nassif's life estate.

The court found the will ambiguous and that Bishop Moussa's interpretation led to an absurd result inconsistent with the testator's intentions.

Applying the "armchair rule" and considering extrinsic evidence, including solicitor's notes, the court concluded there was a drafting error.

Bishop Moussa's application for interpretation was dismissed, and Sarwat Mansour's application for rectification was granted, amending the will to ensure the house transferred to Shoukry Messieh upon Yvonne Nassif's death.

The applicant, Kathleen Ingram, commenced an application seeking dependant's relief under the Succession Law Reform Act and an interest in the estate via constructive/resulting trust.

The respondent, Cherise Charron, in her capacity as estate trustee, brought a motion to dismiss Ingram's claims as statute-barred.

The court found that Ingram's dependant support claim was not entirely statute-barred, as a small portion of the estate remained undistributed.

Crucially, the court held that Ingram's constructive trust claim was governed by the 10-year limitation period under the Real Property Limitations Act, not the 2-year period under the Trustee Act, following the principle of horizontal stare decisis and the Ontario Court of Appeal's decision in McConnell v. Huxtable.

Charron's motion to dismiss was dismissed.

This endorsement concerns the determination of costs following the dismissal of a motion brought by the Defendant, Sergio Grillone, on November 4, 2022.

The Plaintiff, Settlement Lenders Inc., sought partial indemnity costs.

The Defendant failed to provide responding costs submissions despite multiple opportunities.

The court reviewed the Plaintiff's submissions, considering factors under Rule 57.01 of the Rules of Civil Procedure, and found the requested rates and time spent generally reasonable, with a small reduction for potential duplication.

The court awarded the Plaintiff $10,500.00 in partial indemnity costs, payable by Mr. Grillone within 30 days.

The plaintiffs, having succeeded in a solicitor's professional negligence trial and awarded $425,987 in damages, sought costs on a partial and substantial indemnity basis.

The court considered the plaintiffs' valid Rule 49 offer to settle and the complexity of the underlying action.

While acknowledging the plaintiffs' entitlement to costs, the court applied a 25% reduction to the legal fees based on the principle of proportionality and the reasonable expectations of the unsuccessful party, despite finding the hourly rates charged by counsel and staff to be reasonable.

This decision re-evaluates a costs award following a successful appeal by the defendant that significantly reduced the plaintiff's damages in a wrongful dismissal case.

The defendant argued that their earlier offer to settle, which included "statutory deductions" without specificity, should trigger Rule 49 cost consequences as the plaintiff's final recovery was less than the offer.

The court found the offer too ambiguous to meet Rule 49's strictures.

It also dismissed arguments regarding fresh evidence of a counsel agreement and the application of Simplified Procedure rules due to the action's commencement date.

Applying Rule 57.01, the court determined that despite the plaintiff's limited success on major claims, the overall results were mixed, leading to an order that each party bear their own costs.

An appeal and cross-appeal from a wrongful dismissal judgment.

The trial judge found the appellant, an institutional equity salesperson, was constructively dismissed and awarded 11 months' pay in lieu of notice totalling $240,313.79 (net $137,055.54), including base salary, performance bonus, and shareholders' bonus.

The appellant appealed the calculation of her performance bonus; the respondent cross-appealed on mitigation, notice period, shareholders' bonus entitlement, and costs.

The Court of Appeal dismissed the appeal but allowed the cross-appeal in part, finding the appellant was not entitled to shareholders' bonus damages as her shares were redeemed upon termination of employment.

The net damages award was reduced to $57,262.96, and costs were remitted to the trial judge for recalculation.

The defendants brought motions to dismiss two actions for delay, arguing that the plaintiff's delay of over five years was inordinate and inexcusable, and that the death of a key defendant prejudiced their ability to have a fair trial.

The court found the delay to be inordinate and inexcusable.

However, the court was not persuaded that the death of the defendant, Dennis Chedli, would compromise the defence, particularly given the nature of the defences and the availability of other evidence.

The plaintiff successfully rebutted the presumption of prejudice under Rules 24.01(2) and 48.14(1)1.

The motions to dismiss for delay were dismissed.

The appellant, Broadgrain Commodities Inc., sold sesame seeds to Beidahuang Grain Group Co. Ltd. under a CIF contract.

The goods were damaged during transit.

The appellant obtained marine insurance from the respondent, Continental Casualty Company, but the respondent denied coverage.

The motion judge granted summary judgment dismissing the appellant's action, finding that although the appellant had an insurable interest, it sustained no loss as it was paid in full by Beidahuang.

The appellant appealed, arguing it suffered loss through subsequent short-payments from Beidahuang.

The Court of Appeal upheld the dismissal, finding the appellant failed to provide any credible evidence of loss and that a self-serving affidavit without supporting documentation was insufficient to create a triable issue.

This endorsement addresses the costs arising from the successful motions by several defendants to dismiss the plaintiff's action for delay.

The successful defendants sought full or substantial indemnity costs, alleging the plaintiff's action was frivolous or vexatious, or that there was a Mary Carter agreement.

The court found no sufficient justification to depart from the usual order of partial indemnity costs, as there were no findings on the merits of the action, nor evidence of frivolous conduct or collusion.

The court awarded partial indemnity costs to the successful defendants, specifying amounts for the motion to dismiss and the remainder of the action.

The plaintiffs, Greenwald et al., brought a motion seeking an extension of time to set their action down for trial and leave to amend their statement of claim to add Monterey Park Inc. as a defendant.

The action concerned alleged construction deficiencies in a house purchased from Ridgevale Inc. The plaintiffs argued that Monterey Park Inc., controlled by one of the existing defendants, was an alter ego of Ridgevale Inc. and the true vendor.

The court granted the motion, finding that the plaintiffs provided an adequate explanation for the delay in advancing the litigation and that the defendants would not suffer non-compensable prejudice.

Regarding the amendment, the court determined that the claim against Monterey Park Inc. was not statute-barred, as the plaintiffs only discovered sufficient information to advance the alter ego claim in June 2014.

Crucially, the Master emphasized that the underlying merits of a proposed claim are not a relevant factor to consider on a motion to amend pleadings under Rule 5.04(2) of the Rules of Civil Procedure.

The plaintiff brought a motion to set aside an administrative dismissal of her civil action for delay under Rule 48.14 of the Rules of Civil Procedure.

The dismissal resulted after counsel failed to diarize a status notice deadline, leading to the action being dismissed by the registrar.

The court applied the contextual analysis articulated in Reid v. Dow Corning Corp. and Scaini v. Prochnicki, considering the explanation for delay, inadvertence in missing deadlines, promptness of the motion to set aside, and prejudice to the defendant.

Although counsel’s conduct bordered on negligence, the court found the plaintiff had always intended to pursue the litigation and that the motion was brought promptly once the dismissal was discovered.

Finding no significant prejudice to the defendant, the court set aside the administrative dismissal and allowed the action to proceed.