Theodore Carl Dueck

Following the dismissal of the plaintiff's motion for summary judgment regarding a disputed legacy in her late father's will, the court determined the issue of costs.

The court rejected the plaintiff's argument that the traditional estate costs rules should apply, finding that the litigation was caused by the drafting solicitor's error, not the testator's actions.

Applying normal civil costs rules, the court ordered the plaintiff to bear her own costs due to her tactical conduct, ordered the drafting solicitor to bear his own costs because his error caused the litigation, and ordered the plaintiff to pay the partial indemnity costs of the estate and foundation.

The plaintiff sought summary judgment for an $800,000 legacy from her late father's secondary will, arguing for a literal interpretation or that a later clause should prevail.

The defendants argued a drafting error, contending the legacy was conditional on the plaintiff not receiving property under the primary will, which did not occur.

The court applied the "armchair rule" and the Lipson principles for correcting drafting errors, finding an obvious error in the will.

The court dismissed the plaintiff's motion for summary judgment and ordered the will to be amended to reflect the testator's true intention that the legacy was conditional on the property transfer not occurring.

The Superior Court of Justice issued a costs endorsement following a family law trial.

The respondent was deemed the more successful party, particularly due to her settlement-focused approach compared to the applicant's unreasonable settlement positions and discreditable conduct during the litigation.

The court fixed costs on a substantial indemnity scale for the respondent, deducting amounts for her own disclosure delays.

The final order required the applicant to pay a net amount to the respondent after offsetting the equalization payment.

The parties separated after a 16-year marriage, during which they relocated to the UAE for work.

The applicant returned to Canada with the children and remained unemployed for a period, while the respondent stayed in the UAE to pay off debts and continue teaching.

The court determined the equalization of net family property, including the valuation of the applicant's OMERS pension and a disputed loan from his parents, which was excluded due to the expiration of the limitation period.

The court declined to impute income to the applicant, found the adult daughter remained a child of the marriage during a mental health leave from university, and awarded the applicant non-compensatory spousal support for a four-year transition period.

After setting off the equalization payment against retroactive support arrears, the respondent was ordered to pay the applicant a net sum of $34,996.84.

The moving party (respondent in the main action) brought a pre-trial motion seeking an order that his valuation experts not be disqualified due to a perceived conflict of interest raised by the responding party.

The responding party argued the motion judge lacked jurisdiction to bind the trial judge's discretion on admitting expert evidence.

The court agreed, finding that the trial judge acts as the gatekeeper for admitting evidence and a pre-trial ruling could leave the trial judge in an untenable position if cross-examination revealed a conflict.

The motion was dismissed.

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

Following a successful application regarding the scope of a right of way and removal of obstructions interfering with vehicular ingress and egress, the court determined the appropriate costs award.

The responding parties argued that the successful parties should receive a reduced costs award because they failed to pursue meaningful pre‑litigation discussions and adopted an unnecessarily adversarial approach.

The court reviewed the factors under Rule 57.01 of the Rules of Civil Procedure and rejected the argument that the successful parties’ conduct disentitled them to costs.

Finding partial indemnity appropriate, the court fixed costs at a reduced but substantial amount.

The responding parties were ordered to pay a lump‑sum costs award.

The defendant moved to set aside a previously granted Mareva injunction that had frozen the proceeds from the sale of his home in a civil action arising from an alleged assault.

The plaintiffs had obtained the injunction ex parte based on concerns that the defendant would dissipate assets and frustrate enforcement of any damages award.

The court held that the plaintiffs failed to demonstrate that the defendant was removing assets from the jurisdiction or dissipating them outside the ordinary course of living.

Evidence showed the defendant had listed his home for sale because criminal bail conditions prevented him from living there and that he intended to purchase another residence.

Given the extraordinary nature of Mareva relief, the court concluded that continuation of the injunction was not justified and set it aside.

The moving party brought a motion to quash the appellant's notice of appeal in a family law dispute.

The Court of Appeal found that most of the orders appealed from were interlocutory and outside its jurisdiction.

While the orders regarding the sale of the matrimonial home were final, the property had already been sold and the proceeds paid into court, rendering the appeal moot.

The motion to quash the appeal was granted with costs.

Following a five‑day hearing on a motion to change child support, the court determined the appropriate costs award.

The responding party to the motion had unsuccessfully sought a retroactive reduction of child support after selling a dental practice and relocating abroad, and income had been imputed based on prior earnings.

The successful party sought substantial costs including partial and full indemnity rates.

Applying Rule 24 of the Family Law Rules and considering success, offers to settle, the parties’ conduct, and the complexity of the issues, the court found the successful party was entitled to costs but reduced the amount claimed.

The court fixed costs at a fair and reasonable figure rather than the full amount incurred.

Following a motion concerning the continuation of spousal support, the court determined the appropriate costs payable by the respondent to the partially successful moving party.

The moving party sought costs on a full indemnity basis exceeding $25,000, while the responding party argued the bill of costs was excessive and should be assessed on a partial indemnity basis.

The court held that there were no circumstances justifying substantial or full indemnity costs and that the time claimed for cross-examination was excessive.

Applying the principle that costs should be reasonable and reflect the reasonable expectations of the losing party, the court fixed costs on a partial indemnity basis.

A lump sum costs award was ordered.

The father brought a motion to change a 2000 divorce judgment, seeking to terminate child support for one child and adjust it for the other based on a reduction in his income after he sold his dental practice and moved to Honduras.

The court found the father was intentionally unemployed and under-employed, and that his health issues did not reasonably justify the sale of his practice.

The court imputed income to the father and determined the periods during which each child remained a 'child of the marriage' while pursuing post-secondary education.

The father was ordered to pay retroactive table support and his pro rata share of section 7 expenses for both children.

The applicant filed a human rights complaint alleging discrimination on multiple grounds after being asked to leave a homeless shelter operated by the corporate respondent.

The applicant also alleged that a personal respondent made inappropriate comments regarding religion and sexual orientation.

The Tribunal found that the decision to ask the applicant to leave was made in accordance with the shelter's policies and not for any discriminatory reason.

The Tribunal also found no evidence of differential treatment regarding the religious discussions or other interactions.

The application was dismissed.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer terminated her weekly caregiver benefits after 104 weeks, asserting she did not suffer a complete inability to carry on a normal life.

The applicant argued she suffered a substantial inability to engage in her pre-accident caregiving activities for her adult son, who had a severe brain injury.

The arbitrator found that the applicant's physical limitations, including osteoarthritis and restricted mobility, prevented her from meaningfully engaging in her pre-accident caregiving activities.

The arbitrator ordered the insurer to pay ongoing weekly caregiver benefits and interest, but denied the claim for a special award.

The applicant was injured in a motor vehicle accident and received statutory accident benefits.

The insurer terminated caregiver benefits and scheduled a medical examination.

The applicant attended but refused to proceed unless she could tape record the examination, alleging the doctor had been rude previously.

The doctor refused to proceed with the tape recorder.

On a preliminary motion, the arbitrator applied the principles from Bellamy v. Johnson and held that the applicant's refusal to submit to the examination without a tape recorder was unreasonable, as she failed to demonstrate a bona fide concern or propose safeguards to ensure the recording's reliability.