Shael Eisen

The moving party brought a motion under s. 7(5) of the Courts of Justice Act to set aside a single judge's order requiring her to post $50,000 in security for costs of her appeal.

The panel found no error in principle, unreasonable result, legal error, or misapprehension of material evidence in the motion judge's decision.

The motion judge had considered 11 outstanding costs orders totalling over $146,000, the moving party's lack of diligence in perfecting her appeal, and the prejudice to the estate beneficiaries.

The panel declined to consider new affidavit evidence filed after the motion judge's decision.

The motion was dismissed with costs of $10,000 payable to the responding party.

The applicant, Xin Peng, sought a review of a motion judge's order that dismissed her motion to extend the time to file a motion for leave to appeal from a Divisional Court order.

The Divisional Court had previously dismissed her motion for leave to appeal from two costs orders.

The Court of Appeal found no error in the motion judge's analysis or conclusion.

The court affirmed that the Divisional Court is not required to provide reasons for refusing leave to appeal, as this is standard practice for appellate courts.

Furthermore, the Court of Appeal found the proposed motion for leave to appeal to be without merit.

The review motion was dismissed, and costs were awarded to the responding party, May Hing Tam.

The applicant sought an order to validate the Last Will and Testament of the deceased, which was missing one witness signature, pursuant to section 21.1 of the Succession Law Reform Act.

The court applied the two-part test under section 21.1, finding the document authentic and reflective of the deceased's fixed and final testamentary intentions.

The application was granted, validating the will and appointing the applicant as Estate Trustee.

This application concerned the validity of powers of attorney (POAs) made by an 82-year-old respondent, Larry Alvin Marshall, and whether a guardian of his property and person should be appointed.

The applicants, Shawn Hollinger (Attorney for Personal Care) and MD Private Trust Company (Attorney for Property), sought to invalidate new POAs made in January 2023 that named Mr. Marshall's estranged sons, Thomas and Bryan Marshall, as attorneys.

The court found that Mr. Marshall lacked the requisite capacity to make the 2023 POAs due to significant cognitive impairment and vulnerability to undue influence.

Suspicious circumstances surrounding the preparation and execution of the 2023 POAs shifted the burden of proof to the grantees, which was not met.

Consequently, the 2023 POAs were declared invalid, and the 2022 POAs were affirmed as Mr. Marshall's last valid powers of attorney.

The applicants, acting as attorneys under 2022 powers of attorney, sought to invalidate 2023 powers of attorney granted to the respondents (the incapable person's sons) on the basis of incapacity.

At a case conference, the court considered interim arrangements for the incapable person's care and discharge from the hospital.

Finding a strong prima facie case that the 2023 powers of attorney were invalid, the court granted an interlocutory injunction prohibiting the respondents from acting under them, thereby leaving the applicants with exclusive authority to move the incapable person to a private rehabilitation facility pending the final hearing.

This endorsement addresses the determination of reasonable legal fees for counsel representing a person under disability in an accident benefits claim.

The court had previously approved a global settlement of $1.3 million for the catastrophically injured applicant, Robert Jones, after initially declining a lower proposed settlement due to concerns about its adequacy and the absence of a proper management plan.

The primary issue in this endorsement was the reasonableness of the applicant's counsel's proposed contingency fee of 23% (or 26.57% by the court's calculation) of the settlement.

Applying the principles from Henricks-Hunter, the court found the contingency agreement was not fair when made and the proposed fees were not reasonable, considering the minimal risk assumed by counsel due to the undeniable catastrophic injuries, and the fact that the settlement achieved was at the low end of entitlement.

The applicant and respondent, siblings, engaged in a dispute over their mother and sister's properties and the respondent's management as attorney for property.

Both incapable parties resided in long-term care.

The applicant sought an order for the respondent to pass her accounts and to reverse the severance of a joint tenancy, while the respondent sought to enforce a mediated settlement.

The court declined to enforce the settlement as it prejudiced the incapable parties, refused to order a passing of accounts to preserve limited funds, and ordered the sale of the properties to fund the incapable parties' ongoing care, applying the anti-ademption provisions of the Substitute Decisions Act to the proceeds.

The court issued a costs endorsement following extensive litigation concerning the guardianship of an individual with Down Syndrome and the administration of their property and personal care.

The dispute involved multiple family members acting as co-guardians, with issues arising from the treatment of government program funds, tax returns, and the passing of accounts.

While the substantive matters were resolved through a settlement, the court was tasked with determining the allocation of legal costs.

The court emphasized the paramountcy of the ward's best interests and the responsibility of co-guardians to resolve disagreements efficiently.

It found that the ward's estate should not bear the costs of the guardians' inability to cooperate.

Partial costs were awarded to the initial applicant against one respondent due to the latter's unresponsiveness to a legitimate legal concern.

Another respondent was ordered to pay partial costs to a different respondent for bringing a motion to replace a co-guardian without sufficient evidentiary support.

Following a successful motion by certain beneficiaries to strike a will challenge on the basis of estoppel, the court determined costs arising from the motion.

The unsuccessful parties argued that costs should be paid from the estate due to the alleged novelty of applying estoppel to bar a will challenge within the limitation period and contended the claimed costs were excessive.

The court rejected that position, emphasizing the modern principle that estate litigation costs are not automatically payable from the estate.

Applying the factors in Rule 57.01 and the Courts of Justice Act, the court fixed partial indemnity costs for the successful moving parties and reduced certain billed amounts for duplication and excess.

Costs were ordered payable personally by the unsuccessful challengers rather than from estate assets.

The moving parties sought to strike a will challenge brought by an estate trustee and her son concerning the validity of the deceased’s 2010 primary and secondary wills.

The estate trustee had administered aspects of the estate for over a year, including paying significant estate taxes, relying on the wills in dealings with third parties, and exercising authority as estate trustee.

The court held that her conduct created an assumption among the parties that the wills were valid and that others relied on that assumption to their detriment, particularly in relation to complex estate planning transactions and tax consequences arising from an estate freeze.

Applying the doctrines of estoppel by representation and estoppel by convention, the court concluded that the estate trustee was barred from challenging the wills.

The son’s parallel challenge was also struck because he lacked independent knowledge of the estate and acted as a proxy for the trustee.

In a complex receivership and bankruptcy-related proceeding involving a charitable foundation and associated corporations, the applicants brought a motion relating to governance and procedural matters in ongoing litigation.

The court addressed scheduling issues arising after a prior endorsement and dealt with a motion seeking removal of the remaining director of the foundation.

The court directed that the director indicate whether she would consent to removal and scheduled further steps if consent was not provided.

The court also rescheduled examinations and cross-examinations of two individuals in Buffalo, New York, set procedural timelines, and confirmed certain agreed limitations on director liability and additional costs awards.

In an inspection proceeding under the Ontario Business Corporations Act, the court addressed competing motions to approve professional fees incurred during an investigation of several corporations connected to development projects and investment solicitations.

The applicants and the court-appointed inspector sought approval of their accounts and an increase to the existing administrative charge securing payment of investigation costs.

The court assessed the inspector’s fees, legal fees, and applicants’ counsel fees under Rule 57, reducing certain amounts for duplication, clerical work, and excessive rates.

The administrative charge was increased from $200,000 to $399,398 to cover the approved costs.

While the respondents, including a controlling director, were held liable for the costs, the court declined to expand the administrative charge to include the director’s personal assets.

Investors sought the appointment of a receiver over several related corporations and continuation of restraining orders against individuals and entities associated with a charitable foundation alleged to have received investor funds.

The court reviewed the procedural history of inspection, receivership, and bankruptcy proceedings, including interim orders restraining dissipation of assets and permitting limited use of funds for legal and living expenses.

Evidence suggested that investor funds from Ontario real estate projects had been transferred to a charitable foundation and subsequently moved to the United States, including property transactions shortly before asset-freezing motions.

In the absence of opposing materials from several respondent corporations, the court confirmed the appointment of a receiver over certain corporations and extended the interim receivership and restraining orders affecting the foundation and related individuals.

In complex receivership and bankruptcy-related proceedings involving a charitable foundation and associated corporations, the court addressed scheduling and procedural issues arising after prior bankruptcy orders.

Motions concerning the removal of directors and issues involving a third-party entity were adjourned on consent to dates to be set by the trial coordinator.

Examinations of certain responding parties were cancelled due to immigration concerns relating to re-entry into the United States.

The court directed that the examinations proceed in Buffalo, New York under Ontario procedural law, ordered the responding parties to seek necessary U.S. visa permissions, and required advance funding of travel costs for opposing counsel and the receiver.

The endorsement also addressed potential venue issues in a related promissory note action.

Investors and related applicants brought proceedings seeking receivership and related relief against several corporations and individuals connected to a charitable foundation.

Evidence showed the foundation transferred a Florida property to its directors shortly after learning of a pending motion seeking to restrain asset dissipation and appoint a receiver.

The court continued interim restraining and receivership orders and granted a full receivership order against certain corporate respondents other than the foundation.

The issue of whether the property transfer constituted a void transfer under s. 95(2) of the Bankruptcy and Insolvency Act was adjourned to the scheduled bankruptcy trial.

The court also prohibited the release of funds held in a lawyer’s trust account and approved the receiver’s reports.

In complex proceedings involving an inspection application, receivership, and bankruptcy relating to corporate entities and a charitable foundation, the Inspector brought a motion to approve accounts and increase an administrative charge.

Counsel for the foundation sought an adjournment due to counsel’s unavailability outside Canada.

The court granted the adjournment and set procedural timelines for the exchange of materials and questions regarding accounts.

The court also extended existing ex parte restraining orders and the appointment of an interim receiver pending a return hearing.

Respondents subject to the restraining orders were directed to provide an accounting of expenditures made under the limited exceptions permitted by the orders.

Appeal from a Master’s order dismissing a motion to consolidate or have five related estate, trust, negligence, and third-party proceedings heard together under Rule 6.01 of the Rules of Civil Procedure.

The appellants argued the Master misapplied Rule 6, lacked jurisdiction findings, and failed to grant ancillary relief including lifting a stay.

The court held the Master properly exercised her discretion, correctly considered the balance of convenience, and reasonably concluded that consolidating the proceedings would unfairly burden non-family parties with minimal benefit.

The court further held the Master correctly determined that certain requested relief, including effectively converting an application to an action and transferring estate matters, fell outside her jurisdiction.

The appeal was dismissed with costs.

A residual beneficiary brought a motion seeking a ruling that the drafting solicitor’s contemporaneous notes regarding the testator’s instructions were inadmissible in an application to interpret a will.

The dispute concerned whether the residue should be divided into three shares, with one share divided among four children, or into six equal shares among six individuals.

The court held that the language of the will suggested an equal division among six beneficiaries but also found that, if the clause were considered ambiguous as argued by the moving party, extrinsic evidence could be admitted to clarify the testator’s intention.

Applying appellate authority recognizing a trend toward admitting surrounding circumstances in will interpretation, the court ruled that the solicitor’s notes were admissible as extrinsic evidence.

Costs were ordered in the cause.