Canada Case Law

Carew (Estate of) v. Carew

Court

Supreme Court of Nova Scotia

The Estate is the recorded owner and qualifies as landlord under the OTA; the respondent occupies 23 Railroad Street without legal title or rent and is overholding; the Complaint under the OTA was proved and an Order for Possession was properly granted, subject to a reasonable vacate period and without extinguishing any separate probate or proprietary claims the respondent may bring.

Source excerpt

• Order for possession
• Overholding tenants act
• Estate administration
• Occupancy disputes
• Constructive trust
• Unjust enrichment

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Arnaldi v. Liggett

Court

Supreme Court of British Columbia

Registrar found the hours billed (629 by lawyer, 78.2 by staff) were excessive and not reflected in the work product; substantial portion of staff time was administrative or training and should not be billed; lawyer failed to demonstrate required skill and produced pleadings and submissions lacking legal analysis despite extensive research charges; solicitor's disciplinary history and trust-account restrictions were relevant; applied s.71(4) factors and reduced allowed fees to $60,000 inclusive of disbursements, taxes, interest and amounts already paid; because reduction exceeded 1/6th, solic…

Source excerpt

• Billing dispute
• Bill review under lpa
• Reasonableness of legal fees
• Retainer agreement
• Interest charges
• Probate and administration

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Debono v. JCD Property Ltd.

Court

Court of Appeal for Ontario

The Court of Appeal for Ontario dismissed an appeal from an order striking the appellants’ defence for repeated non-compliance with production orders in estate litigation.

• Discovery and production
• Sanctions for non-compliance
• Striking pleadings
• Contempt
• Fiduciary duty and accounting
• Capacity

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Rodrigues v. Berlinguette

Court

Supreme Court of British Columbia

The 2008 transfer was gratuitous but the defendants proved on the balance of probabilities that Marlene intended to make a gratuitous inter vivos gift of the right of survivorship to the three defendants while retaining beneficial ownership during her lifetime; accordingly the presumption of resulting trust was rebutted and the defendants took beneficial ownership on survivorship; plaintiffs' claim dismissed.

Source excerpt

• Resulting trust
• Gift of right of survivorship
• Indefeasible title
• Gratuitous transfer
• Co-signing mortgage as consideration
• Burden of proof

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Wols v. Funk

Court

Supreme Court of British Columbia

Because the plaintiff was substantially successful in a wills variation claim, the defendants opposed the claims in their personal capacities as beneficiaries, and no responsive submissions were filed, the court exercised its discretion to order blended costs: tariff costs on Scale B payable personally by the defendants and the balance of the plaintiff's reasonable legal costs payable from the estate on a full indemnity basis; the earlier settlement offer did not warrant double costs and supported a blended order.

Source excerpt

• Wills variation
• Costs awards
• Offers to settle
• Litigation guardian
• Tariff costs
• Blended costs

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Henley Estate (Re)

Court

Newfoundland and Labrador Court of Appeal

The appeal was dismissed because the 960-day delay between the original decision and filing the Notice of Appeal, although the Notice was filed within 30 days of a later formal order, constituted undue delay that prejudiced the respondents, undermined finality and judicial economy, risked conflicting orders, and the appeal had low potential merit; rule 36(1)(b)(iii) encompasses delay prior to filing.

Source excerpt

• Timeliness of appeal
• Rule 20a enhanced costs
• Undue delay
• Finality
• Procedural fairness

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Stingelin Estate v. Woods

Court

Court of Appeal for Ontario

The Ontario Court of Appeal dismissed an estate trustee’s appeal from summary judgment, holding the respondent lawyer owed no duty or fiduciary duty and the claim was time-barred.

• Duty of care
• Fiduciary duty
• Causation
• Discoverability under limitations act
• Summary judgment
• Will drafting

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Dwyer v. Interior Health Authority

Court

Supreme Court of British Columbia

The court held that claims brought on behalf of the deceased for non-pecuniary loss are barred by WESA and therefore those portions of the NOCC must be struck; conversely, it is not plain and obvious that Mr. Dwyer's personal claims — including as substitute decision-maker and for negligent infliction of mental distress related to the defendants' alleged failure to respect an advance directive and MRA — have no prospect of success, so those claims may proceed and the plaintiff is granted leave to amend; the Rule 9-6 summary dismissal application was refused as premature pending amendment.

Source excerpt

• Duty of care
• Negligence
• Advance directives
• Representation agreements
• Palliative care
• Summary judgment

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Fitzpatrick v. Phillips

Court

Supreme Court of British Columbia

The interim accounts of the executrix are passed; applicant entitled to special costs for steps reasonably necessary to protect beneficiary rights, to be assessed by the registrar under Rule 14-1(3) or agreed and payable from the estate; respondent is not disentitled from having her administration costs paid from the estate and is awarded her special costs of administration payable from the estate.

Source excerpt

• Passing of accounts
• Executor duties
• Beneficiary disclosure rights
• Special costs
• Valuation of estate assets

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Vassell Estate v. Vassell

Court

Court of Appeal for Ontario

The Ontario Court of Appeal upheld the refusal to extend time to perfect an estate appeal, but set aside a full indemnity costs order and replaced it with partial indemnity costs.

• Extension of time to perfect appeal
• Costs awards (full and partial indemnity)
• Fresh evidence admissibility
• Undue influence
• Standards of review for motions
• Extension-of-time-to-perfect-appeal

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