Tag: Ontario Court of Appeal

21 Aug

Hull on Estates #553 – Who is the Children’s Lawyer?

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This week on Hull on Estates, Jonathon Kappy and Nick Esterbauer discuss the role of the Children’s Lawyer in Ontario and the recent decision of the Ontario Court of Appeal in Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner).

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01 May

Hull on Estates #545 – The availability of summary judgments

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In today’s podcast, Ian Hull and Rebecca Rauws discuss the availability of summary judgments, and their use in estate litigation, in the context of the recent Ontario Court of Appeal decision in Aird & Berlis LLP v Oravital Inc., 2018 ONCA 164.

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20 Mar

Hull on Estates #542- Harvey v Talon International Inc.: The Importance of Pleading Earnest

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In today’s podcast, Jonathon Kappy and Garrett Horrocks discuss the Ontario Court of Appeal’s decision in Harvey v Talon International Inc., a case that clarified the importance of proper pleadings in real property claims.

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06 Mar

Hull on Estates #541 – Cross claims and time-barred

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Today on Hull on Estates, Paul Trudelle and Kira Domratchev discuss the decision of the Ontario Court of Appeal in Levesque v Crampton Estate, 2017 ONCA 455, which dealt with the question of whether a crossclaim against the Estate of Father Dale Crampton was time-barred by s. 38 (3) of the Trustee Act.

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30 Aug

Hull on Estates #482 – Indemnification of Estate Trustees

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This week on Hull on Estates, David Smith and Nick Esterbauer discuss the principle of indemnification of estate trustees and the recent case of the Ontario Court of Appeal in Brown v. Rigsby, 2016 ONCA 521. (http://bit.ly/2biTez3)

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10 Mar

Is Discrimination a Restriction on Testamentary Freedom?

Lisa-Renee In the News, Litigation, Public Policy, Wills Tags: , , , , , , , 0 Comments

Last year, Spence v. BMO Trust Company, 2015 ONSC 615 was one of the most significant estate cases of 2015.  In Spence, the testator made a Will that unambiguously and unequivocally disinherited one of his daughters.  The disappointed daughter applied to the Ontario Superior Court of Justice for an order setting aside the Will on the ground that she was disinherited solely because she had a child with a white man.  A third party swore an affidavit corroborating the Applicant’s evidence that her father disinherited her for reasons that were racially discriminatory.  Justice Gilmore accordingly set aside the entire Will on the basis that it was contrary to public policy against racial discrimination.  The Respondent BMO Trust Company appealed the decision.
FamilyThis week, the Ontario Court of Appeal released its long awaited ruling in Spence v. BMO Trust Company, 2016 ONCA 196.  The Court of Appeal overturned Justice Gilmore’s decision, stating that the principle of testamentary freedom to choose one’s beneficiaries is generally immune to judicial scrutiny.

In reaching its decision, the Court of Appeal appears to have significantly restricted the scope of the public policy doctrine in estate cases.  Simply put, a Will that does not impose any conditions that, on its face, offend public policy appears to be valid regardless of the testator’s intentions.  Thus, the Court in Spence found that the testator was free to disinherit his daughter even if his intention appeared to be racially discriminatory.

It remains to be seen whether the Applicant will seek leave to appeal to the Supreme Court of Canada.

To hear an interesting discussion about the earlier decision in this case check out Hull on Estates podcast #404

16 Nov

Meaning of “Use” and Accumulation of Wealth

Ian Hull Litigation, Wills Tags: , , , , , , , , , , 0 Comments

In a recent Ontario Court of Appeal decision, Holgate v Sheehan Estate, 2015 ONCA 717, the court was asked to consider an appeal from a motion for determination of an issue under Rule 21.01(1)(a) of the Rules of Civil Procedure. The Rule 21 motion arose in the context of a trial with respect to the interpretation of the will and codicil of John Holgate, and particularly the meaning of the word “use”. The appeal also dealt with the trial judge’s jurisdiction to hear the mid-trial Rule 21 motion, but this blog will deal with the former issue.

Mr. Holgate had passed away and was survived by two sons from his first marriage (the “sons”) and his second wife, (“Mrs. Holgate”). Mr. Holgate’s will and codicil provided for a life interest in two trusts to Mrs. Holgate. Following Mrs. Holgate’s death, Mr. Holgate’s children were entitled to the remainder of the two trusts. The wording of the two trusts provided that the trust assets were to be held for “the sole use and benefit of my wife MAY HOLGATE during her lifetime”.

The sons brought an action against their father’s estate, Mrs. Holgate’s estate and Mrs. Holgate’s daughter personally, claiming that Mrs. Holgate’s life interest allowed her to use the money but not save it. They alleged that Mrs. Holgate had not only used trust assets, but had also saved money, thereby depleting the capital of the estate to their detriment and contrary to their father’s intention.

Three days into the trial, the trial judge invited counsel to bring a mid-trial motion either for determination of an issue or for directions in order to determine this critical issue with respect to the interpretation of the will and codicil, namely the meaning of the term “use”. Counsel agreed to bring a Rule 21 motion and asked whether the wording of the will and codicil precluded Mrs. Holgate from accumulating wealth from the trusts in her own name.

The trial judge concluded that:

  • nothing in the will or codicil prevented Mrs. Holgate from saving and accumulating wealth;
  • the language of the will came as close as possible to conferring an absolute gift on Mrs. Holgate; and
  • neither of the trusts included any limitations on the use of the assets by Mrs. Holgate.

On appeal by the sons, the Court of Appeal agreed with the trial judge’s interpretation, that the words and phrases used in the trusts indicate a clear intention on Mr. Holgate’s part to allow his wife unrestricted access to the funds. They also cited Dice v Dice Estate, 2012 ONCA 469, which held that “[t]he golden rule in interpreting wills is to give effect to the testator’s intention as ascertained from the language that was used”.

Thanks for reading.

Ian Hull

09 Jun

Hull on Estates #421 — Transfer of real property between parent and adult child

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Today on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the recent Ontario Court of Appeal decision of Mroz v. Mroz, departing from the decision by the Superior Court of Justice, with respect to the application of Pecore in transfers of real property between a parent and their adult child.

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23 Jan

Blended Costs

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“Blended costs” were endorsed last year by the Court of Appeal for Ontario in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada. The policy underling such costs orders is that there are situations in which a successful trustee will be entitled to costs where he or she is successful in litigation, but may still be out of pocket. In such cases, the Estate should make up the shortfall as because the money was spent on due administration of the Estate.

In the recent case of Heston-Cook v. Schneider, 2015 ONCA 10 (Ont. C.A.), two sisters were beneficiaries of their mother’s estate. The mother’s house went to one daughter (Estate Trustee, respondent on the appeal) and $100,000 out of residue went to the other sister (appellant).

After the transfer of the house and the acceptance of the specific legacy, the appellant brought claims against the estate trustee for breach of fiduciary duty – basically a POA accounting but with the nice twist that she wished disgorgement of money that should have been spent on the mother`s care while alive.

The respondent brought a Rule 21 motion to strike the Claim. The Motion Judge adjourned the Rule 21 Motion in order to allow the Appellant to apply to remove and replace the respondent as estate trustee so she could press the breach of fiduciary duty claim as she otherwise lacked standing.

Wilton-Siegel J. sat as the Motion Judge on the removal application and dismissed it. He awarded full indemnity costs of $12,000.

In the Court of Appeal, the appeal was dismissed. There was no error in principle by Motions Judge in respect of the substantive decision. The costs award, however, was varied. The Endorsement provided at para 14:

A blended award, in which costs on a partial indemnity scale are awarded against the unsuccessful party and the remainder of the costs are paid from the estate would appear to strike the appropriate balance. See e.g. Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101 (CanLII) at para. 96. In our opinion the motion judge erred in principle in ordering the appellant to fully indemnify the respondent.

This is a nice case that deals with the common occurrence of the need for proper standing to press a claim on behalf of the estate. A beneficiary ill-advisedly brought the claim in her own name. The Motions Judge on an application to remove and replace the Estate Trustee obviously thought the underlying claim was weak and sanctioned the claimant through an order for full-indemnity costs. The Court of Appeal agreed that the successful Estate Trustee should be fully indemnified, but the full indemnification was to be borne by the Estate in part ($4500) and in part by the unsuccessful applicant ($7500). In other words, the unsuccessful claimant ought not to have been punished (and hence partial indemnity costs – in effect – were ordered) but the estate trustee ought not to suffer (and hence was entitled to a full indemnity).

A nice short case that continues a principled approach to costs.

David Freedman

18 Apr

Lights, Camera, Action!

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Access to justice in Ontario is a hot topic and a priority for Attorney General Michael Bryant. In fact, he is the force behind various changes we are seeing in the legal arena that according to Jim Middlemiss (in his article Smile, you’re on CA Camera published in the March 2007 edition of Canadian Lawyer) include the introduction of the Access to Justice Act, 2006 that reforms the justice of the peace system and regulates paralegals.

Another change being made affects the Ontario Court of Appeal where cameras are being allowed in the courtroom for some hearings as part of a pilot project. Now, more than ever, counsel will have to enter this court with robes ironed, hair styled and legal arguments ready. The pressure is on. Not only do counsel have to persuade appellate judges of the merit of their client’s case, counsel has to do it on national television!

While the objective is a worthy one – providing an unobstructed view of our justice system at work – I must admit I am more interested in the impact televised hearings will have on the form and presentation of legal argument. I expect that some lawyers may be unnerved by the watchful eye of the public, some may be eager to make a name for themselves and some may not be fazed at all.

My hope is that it will further add to the caliber of advocacy and professionalism and inspire the public to take an interest.

Until tomorrow,

Natalia Angelini

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