Canada Case Law

Al-Sabah Estate (Re)

Court

Supreme Court of British Columbia

Registrar Gaily's factual findings based on the evidence were entitled to deference and were neither unreasonable nor outside the scope of the inquiry; Respondent failed to prove time, tasks or responsibility warranting claimed remuneration; accordingly a nominal lump sum of $10,000 was appropriate, Respondent must bear her own costs of the reference, Respondent must personally pay Applicant's costs incurred preparing for and attending the reference, and Applicant's costs of this application are payable as special costs from the estate to be assessed by the Registrar.

Source excerpt

• Administrator remuneration
• Reference to registrar
• Special costs
• Passing of accounts
• Confirmation hearing

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Rasner v. Berger

Court

British Columbia Court of Appeal

Leave to appeal was refused because the executor who sued on behalf of the estate is not a separate legal person and therefore not a non-party; established common law allows personal representatives who unsuccessfully sue to be personally liable for costs; the trial judge's award was a fact-specific exercise of discretion supported by findings (timing, distribution of assets, sole beneficiary) and raised no novel question of principle warranting appellate intervention.

Source excerpt

• Executor personal liability
• Non-party costs
• Leave to appeal
• Discretionary costs orders

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Bensen v. Bensen

Court

Court of Appeal for Ontario

Ontario Court of Appeal dismissed an appeal over alleged breach of undertaking, oppression under s. 248 of the OBCA, and refusal to remove a trustee.

• Oppression remedy under s.248 bca
• Undertaking and breach
• Removal of trustee
• Conflict of interest and fiduciary duties
• Settlement privilege
• Costs

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O’Neil v. O’Neil

Court

Supreme Court of Nova Scotia

The moving party failed to meet the heavy burden to demonstrate a reasonable apprehension of bias; an adverse ruling in a related proceeding and the administrative assignment of the judge are insufficient grounds for recusal, therefore the motion to recuse is dismissed and no costs are awarded.

Source excerpt

• Reasonable apprehension of bias
• Change of venue
• Judicial assignment
• Stay of proceedings
• Summary judgment
• Limitation defence

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Kavanagh v. Barbeau

Court

Supreme Court of British Columbia

The court held it was not plain and obvious that the RTCC was unnecessary, scandalous, frivolous or prejudicial because the contested allegations (including claims of tax evasion and deception by the deceased) were relevant to a bona fide defence that the deceased retained control and caused the companies' financial and tax problems; however, the court struck narrowly those broad, sweeping and undated allegations that alleged unspecified illegality or lifelong misconduct unconnected to the pleaded issues (paras. 7, 10 and 17) as confusing and potentially prejudicial, and granted leave to amen…

Source excerpt

• Strike pleadings
• Fiduciary duty breach
• Unjust enrichment
• Pleading sufficiency
• Allegations of tax evasion
• Relevance and prejudice in pleadings

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Cabalona v. Turney

Court

Supreme Court of British Columbia

The Family Law Act applies; on a s.89 assessment the court found both parties economically needy but Turney more disadvantaged (incapacity, low fixed income, cannot self-represent) and that a further large interim distribution to the claimant would likely harm Turney's interests given the disputed cohabitation agreement and prior $200,000 distribution; balancing necessity and potential harm, the court exercised its discretion to grant a limited interim distribution of $50,000 to Turney for future legal fees and disbursements only, and denied the claimant's application for a second interim dis…

Source excerpt

• Interim distribution
• Family law act s.89
• Cohabitation agreement enforceability
• Litigation funding
• Capacity and committee proceedings
• Consent orders

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Re: The Jack Leshgold Family (2009) Trust

Court

Supreme Court of British Columbia

The petition is dismissed because s.86 Trustee Act and the court's inherent jurisdiction do not extend to adjudicating questions that amount to construction or variation of the trust deed affecting beneficiaries' rights; alternatively, even if the court had jurisdiction, Article 5.3's power to amend "administrative provisions" does not authorize amendment of the mechanism for appointing trustees because such a change goes beyond management of trust property and would contravene the settlor's clear intention.

Source excerpt

• Trust construction
• Trustee appointment
• Variation of trust
• Jurisdiction under s.86 trustee act
• Inherent jurisdiction

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John Szewczyk Testamentary Trust v. Szewczyk

Court

Court of Appeal for Ontario

The Court of Appeal for Ontario dismissed an appeal about will interpretation, finding no palpable and overriding error, no error of law, and no error in principle.

• Will interpretation
• Costs
• Ambiguity in will
• Testamentary trust
• Will-interpretation
• Testamentary-trust

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DeVenne v. DeVenne

Court

Supreme Court of Nova Scotia

The enduring power of attorney signed August 27, 2021 is valid; its text appointed multiple attorneys to act severally (any one acting alone). Wesley and Judith, as attorneys, breached statutory and fiduciary duties by causing the donor’s funds to be applied to the defendants’ house purchase (gift/transfer without grantor authority) and by withholding information from co-attorney Suzanne. Section 24 immunity does not apply because the defendants did not act in good faith with reasonable care. Remedy: defendants must transfer $25,000 to the estate; other claimed personal damages by Suzanne are…

Source excerpt

• Validity of enduring power of attorney
• Duties of attorneys
• Accounting and restitution
• Relief under s.24 enduring powers of attorney act
• Damages and remedies

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Barnes-Morris v. Kolias

Court

Supreme Court of British Columbia

The contempt application was dismissed because the claimant failed to prove beyond a reasonable doubt the first element of civil contempt — the Consent Restraining Order did not clearly and unequivocally prohibit the Impugned Transactions given the ambiguous phrase 'held by', and the applicant's materials failed to meet the strictissimi juris pleading and evidentiary standard required for contempt proceedings.

Source excerpt

• Property restraining order
• Civil contempt
• Strictissimi juris
• Shareholder loans
• Purging orders
• Costs

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