Stephen Victor

In an estate appeal, the court held that the judgment under appeal was, on its face, made under the Succession Law Reform Act.

Because s. 76 grants exclusive appellate jurisdiction to the Divisional Court for appeals under that Act, the Court of Appeal lacked jurisdiction.

The appeal was dismissed on that basis.

The court also ordered costs payable to the respondent by the estate in an agreed all-inclusive amount.

The objectors, the widower and daughter of the deceased, brought a motion for directions under Rule 75.06 challenging the validity of the deceased's 2018 wills on grounds of lack of testamentary capacity and undue influence by the applicant son.

The court found the objectors met the minimal evidentiary threshold to call the wills into question.

The court ordered broad documentary discovery and the examination of the drafting lawyer, and appointed an independent estate trustee during litigation on an interim basis to ensure fairness and preserve estate assets.

Following motions by both parties regarding refusals and questions taken under advisement during questioning, the Estate Trustee was largely successful.

Both parties sought costs of the motions.

The court determined the Estate Trustee's entitlement to costs as the successful party and fixed the quantum on a partial indemnity basis at $25,200, plus $500 for a prior appointment, payable by the applicant.

The respondent estate brought a motion on the first day of trial to amend its Answer to include the equitable defence of laches against the applicant's claim to set aside a marriage contract.

The applicant opposed the motion, arguing that laches is not a legally tenable defence to a statutory claim under section 56(4) of the Family Law Act and that the amendment would cause uncompensable prejudice.

The court granted the motion, finding that a claim for declaratory relief under section 56(4) is equitable in nature and can be defended by laches.

The court also found that any disadvantage to the applicant could be compensated by costs, an adjournment, or trial management.

In a bifurcated family law and estate proceeding, both the applicant and the respondent estate brought motions to compel answers to questions refused or taken under advisement during questioning.

The central issue for the first phase of the trial was the validity and enforceability of a 1986 marriage contract.

The court ordered the applicant to produce documents relating to her prior divorce and records from her physician and counsellor, finding them relevant to her understanding of domestic contracts.

The court dismissed the applicant's motion to compel the estate trustee to answer questions regarding the deceased's subsequent estate planning and relationships with lawyers, finding them irrelevant to the 1986 contract or overly broad.

The applicant and the respondent estate both brought motions under Rule 20(5) of the Family Law Rules to question a non-party lawyer who had advised the applicant on a marriage contract over 30 years ago.

The non-party opposed the questioning, suggesting written interrogatories instead.

The court found that the three-part test for questioning a non-party was met, as the lawyer's evidence was crucial to the validity of the marriage contract and could not be easily obtained by other methods.

Given the lawyer's advanced age and the importance of his evidence, the court also ordered that the questioning be recorded to preserve the evidence for trial, analogous to Rule 36 of the Rules of Civil Procedure.

The applicant sought costs of $34,160 on a full recovery basis against a third-party witness who unsuccessfully opposed a motion to be questioned prior to trial.

The third party argued he was a non-party and sought his own costs.

The court found the third party was a party for the purposes of the motion under the Family Law Rules and that the applicant was the successful party.

Applying principles of proportionality and considering the respective offers to settle, the court awarded the applicant costs fixed at $10,000.

Following a successful motion by the respondent Estate to bifurcate the trial regarding the validity of a marriage contract, the Estate and the co-respondent sought costs.

The Estate claimed over $74,000 in partial indemnity costs, which the applicant argued was disproportionate.

The court agreed that the Estate's costs were excessive and disproportionate for a one-day motion, despite the high stakes and complexity.

The court fixed the Estate's costs at $35,000 and the co-respondent's costs at $2,500.

Following the dismissal of the defendants' motion for leave to appeal, the parties made written submissions on costs.

The plaintiff sought partial indemnity costs of $11,853.89, while the defendants argued the amount should not exceed $5,000 based on average awards for similar written motions.

The court found the motion for leave involved complex constitutional issues, justifying a higher award than typical leave applications.

The court awarded the plaintiff costs fixed at $8,000 inclusive of HST and disbursements.

The defendants sought leave to appeal to the Divisional Court from a motion judge’s decision partially refusing to strike portions of a statement of claim under Rule 21.

The defendants argued that certain claims relating to the plaintiff’s removal from political office were non‑justiciable due to Crown prerogative and that references to testimony before a Parliamentary Committee were barred by parliamentary privilege.

The court held that the low threshold for surviving a pleadings motion meant the motion judge’s rulings were not open to serious debate.

The court further held that potential conflicts between parliamentary privilege and solicitor‑client privilege could appropriately be addressed at trial on a full evidentiary record.

The defendants brought a motion under Rule 21.01(b) of the Rules of Civil Procedure to strike portions of an amended statement of claim alleging breach of solicitor-client duties and defamation.

The court considered challenges including alleged non‑justiciable claims tied to parliamentary and executive privilege, insufficient particulars in the libel pleadings, prior determinations that certain statements were not defamatory, and whether fiduciary duty allegations were merely disguised defamation claims.

The court held that most allegations were properly pleaded and could proceed, including claims relating to alleged breaches of fiduciary duty and defamatory statements.

However, portions alleging that previously adjudicated statements were defamatory had to be re‑cast due to issue estoppel.

References to parliamentary committee testimony were permitted to remain pending determination of privilege issues at trial.

Following a successful opposition to a motion seeking to stay or dismiss an action for non-payment of prior costs, the plaintiff sought costs of the motion.

The court applied the presumption of partial indemnity costs under Rule 57 of the Rules of Civil Procedure.

While accepting the reasonableness of counsel’s hourly rate, the court reduced the preparation time claimed and fixed the costs at $8,000 plus disbursements and HST.

The court further ordered that the awarded costs could be set off against outstanding costs owed by the plaintiff to the moving party.

The plaintiff brought a motion seeking to consolidate two related actions, add a new plaintiff, and amend its pleadings to include claims for defamation and breach of a duty of good faith.

The court held that the two actions should not be formally consolidated but ordered that they be listed for trial consecutively.

The proposed defamation claim and addition of a new plaintiff were refused because the pleadings lacked the particularity required for defamation and would not survive a motion to strike.

The proposed claim for breach of a duty of good faith was also rejected because such a duty cannot stand as an independent cause of action separate from breach of contract.

Certain amendments pleading material facts were allowed, while others were dismissed for improperly pleading evidence rather than material facts.

A defendant in a defamation action moved to dismiss or stay the proceeding due to the plaintiff’s failure to pay prior costs awards totaling $46,500 from a pleadings motion and $25,000 from an appeal.

The plaintiff deposed that she had paid $35,000 to certain other defendants and was currently impecunious while residing outside the jurisdiction.

The court recognized its broad discretion regarding non-payment of costs and noted the appellate court had characterized the claim as arguable.

Given that the action remained at the pleadings stage and another motion to strike the amended claim was pending, the court found the request premature.

The motion was dismissed without prejudice to a potential future motion for security for costs.

Following a trial and partial appeal, the only remaining issue in the action was damages for negligent misrepresentation.

The parties exchanged settlement communications in which the defendant offered to pay $80,000 inclusive of interest and costs in exchange for dismissal of the remaining issues and a full and final release.

The plaintiff accepted the offer but the parties later disagreed about the scope of the release wording.

The court held that settlements normally imply the provision of a release, but the terms must reflect the agreement actually reached.

The court found the plaintiff’s proposed release properly reflected the settlement terms and rejected the defendant’s attempt to broaden the release to include additional discoverable claims.

Following a professional negligence trial, the court considered submissions on costs and the applicable rate of pre‑judgment interest.

The court corrected an error in the original reasons, confirming that pre‑judgment interest applied only to the $22,000 award rather than the total $50,000 damages figure referenced in the earlier decision.

It held that the appropriate pre‑judgment interest rate was 5% for the entire pre‑judgment period.

Although the plaintiffs sought more than $278,000 in partial indemnity costs, the court reduced the award after considering that the plaintiffs succeeded only in part and were unsuccessful on several factual allegations.

Applying principles from appellate authority regarding the purpose and reasonableness of costs, the court awarded $150,000 inclusive of taxes and disbursements.

The plaintiff sought leave to appeal a master's costs order that directed no costs be awarded to either party following a motion in which the plaintiff had been substantially successful.

The court considered the standard for granting leave to appeal a costs order under s. 133(b) of the Courts of Justice Act, which requires strong grounds demonstrating that the lower court erred in principle or exercised discretion improperly.

The court emphasized that appellate courts are reluctant to interfere with discretionary costs decisions absent clear error.

The master had considered the conduct of the parties and explained why costs were not awarded despite the general rule that costs follow the event.

The court found no basis to conclude the master was plainly wrong or erred in principle and refused leave to appeal.

The plaintiffs sought clarification of a prior costs endorsement issued following an adjournment request on a motion.

The court reviewed the earlier endorsement and clarified that the costs award of $1,250 plus HST was intended to cover both the costs thrown away and the disposition of relief sought in specific paragraphs of the notice of motion.

The judge confirmed that the order was not intended to award $1,250 plus an additional amount for costs thrown away.

No further appointment was required to resolve the issue.

Following the striking of a statement of claim alleging conspiracy, defamation, misfeasance in public office, and related torts against numerous defendants, the court determined the quantum of costs payable on the successful pleadings motion.

Multiple defendant groups sought more than $205,000 in partial indemnity fees and over $20,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the fairness principles articulated in Boucher, the court considered duplication of effort among separately represented defendants with similar interests.

The court concluded that substantial overlap existed between certain defendants’ legal work and therefore limited recovery to a single set of costs for those parties.

Reduced costs totalling $108,000 in fees plus $10,560 in disbursements were awarded, subject to HST.

The plaintiff, a former Member of Parliament and cabinet minister, sued the prime minister, his senior advisors, and others for conspiracy, defamation, and other torts following her removal from cabinet and the Conservative Party caucus.

The defendants brought a motion to strike the statement of claim.

The court granted the motion, finding that the decisions to remove the plaintiff from cabinet and caucus were protected by Crown prerogative and parliamentary privilege, respectively, and were therefore not justiciable.

The court also held that communications between the prime minister and his advisors were protected by absolute privilege, and that the Conservative Party of Canada, as an unincorporated association, lacked the capacity to be sued.