Whaley Estate Litigation
 Whaley Estate Litigation Newsletter Vol.4 No. 4 July 2014





Thank you for your continued feedback, comments, enquiries and contributions at:


Whaley Estate Litigation provides litigation, mediation and dispute resolution services throughout Ontario to you, or your clients in the following practice areas:

  • Will, Estate, Trust Disputes
  • Advising Fiduciaries
  • Dependant Support Claims
  • Passing of Estate, Attorney, Guardian and Fiduciary Accounts
  • Capacity Proceedings
  • Guardianships
  • Power of Attorney Disputes
  • Consent and Capacity Board Proceedings 
  • End of Life Decisions
  • Treatment Decisions
  • Elder Law
  • Elder Financial Abuse
  • Solicitor's Negligence
  • Opinions
  • Agency Services
  • Substitute Decisions Act, S.3 Counsel
  • Mediation 


Please Enjoy, 


Kimberly A. Whaley
Whaley Estate Litigation



1. Albert Oosterhoff Joins WEL




2. Albert Oosterhoff was referenced by the ONSC, unreported London SCJ, Family Court


In the Endorsement of Mitrow J., Re Ronald Scott Furtney, the Estate Trustee of the late Philip Leroy Furtney, the Applicant, and Mary Diane Furtney, Respondent, http://canlii.ca/t/g7qtp, the court referenced Albert Oosterhoff's article (as previously blogged - link to post): "Indemnity of Estate Trustees as Applied in Recent Cases" (2013), 41, The Advocates Quarterly 123. 


Professor Oosterhoff's article advocates for the maintenance of the basic principles founded in our Trustee Act legislation and provides analysis of certain cases which wrongly strayed from such principles. Notably, the court relied on this article in respect of the important and long held principle that Estate Trustees are to be fully indemnified for fees incurred in defending the estate.


Per Mitrow J., at paragraphs 33-44:


"[33]           Professor Oosterhoff explained the nature of the right of an estate to be indemnified as follows at pages 127-128 (footnote omitted):


As the word itself suggests, the right to be indemnified implies that estate trustees should bear the costs and expenses themselves first and then seek reimbursement from the estate assets. But this presents a problem. Many trustees and estate trustees do not have the wherewithal to pay the costs out of their own pocket. Nor should they have to. Their office is a socially desirable one which at one time, at least in the case of trustees, was carried out without remuneration.


Of course, a person who has been named to the office does not have to accept it. He may renounce. Most people would probably want to renounce once apprised of the fact that they must pay for all costs and expenses personally and can recover them only afterwards. On that basis few people would agree to take on the office. That is certainly not desirable, for the administration of estates is a socially necessary and desirable function that the law should promote and foster. And so it has long been the practice and the courts have long since recognized that trustees and estate trustees may pay the costs and expenses out of estate or trust assets.  ...


[34]           As Professor Oosterhoff points out (at page 125), the courts have always held that estate trustees (and also trustees) are entitled to be indemnified for their reasonable expenses.


[35]           The right to indemnity extends to legal fees.  In Re Thompson Estate, 1945 CanLII 2 (SCC), [1945] S.C.R. 343, Rand J. for the majority states at page 356:


... The general principle is undoubted that a trustee is entitled to indemnity for all costs and expenses properly incurred by him in the due administration of the trust:  it is on that footing that the trust is accepted.  These include solicitor and client costs in all proceedings in which some question or matter in the course of the administration is raised as to which the trustee has acted prudently and properly.  ...


[36]           The fact that a trustee (or an estate trustee) may have a co-existing interest as beneficiary has not been viewed as a valid basis for denying costs.  This issue was examined by the Supreme Court of Canada in Geffen v. Goodman Estate, 1991 CarswellAlta 91 (S.C.C.).  In that case, a woman, having a mental illness, inherited property.  She settled the property upon a trust for herself for life, with the remainder to go to her children, nieces and nephews.  The woman's brother gave her input in settling the trust.  Two of the woman's brothers, and her nephew, were named as trustees.  Following her death, the woman's son, in his personal capacity and as executor of his mother's estate, sued the trustees alleging undue influence.  This action ultimately proved unsuccessful after the trustees were vindicated in the Supreme Court of Canada.  On the issue of co-existing interests of a trustee, as beneficiary, the Court stated at para. 77:


77     Nor can there be any serious question that the appellants in defending the action were acting, not for their own benefit, but for the good of the trust. For William Geffen, of course, defending the action promoted both his personal interest as well as that of his fellow beneficiaries. While we have not been referred to a case in which trustees seeking indemnification from a trust were also beneficiaries of the trust, I do not consider the co-existing interest of trustee and beneficiary a valid basis for denying costs. Similarly, the fact that the Geffen brothers were acting in the interests of their children, nephews and nieces does not, in my view, cast any doubt upon the propriety of their actions.


[37]           Further, in Geffen, supra, the Supreme Court of Canada clarified that trustees are entitled to recover legal costs reasonably incurred, stating as follows at para. 75:


75     The courts have long held that trustees are entitled to be indemnified for all costs, including legal costs, which they have reasonably incurred. Reasonable expenses include the costs of an action reasonably defended: see Re Dingman (1915), 35 O.L.R. 51. In [page 391] Re Dallaway, [1982] 3 All E.R. 118, Sir Robert Megarry V.C. stated the rule thus at p. 122:


In so far as such person [trustee] does not recover his costs from any other person, he is entitled to take his costs out of the fund held by him unless the court otherwise orders; and the court can otherwise order only on the ground that he has acted unreasonably, or in substance for his own benefit, rather than for the benefit of the fund.


[38]           Section 23.1 of the Trustee Act, R.S.O. 1990, c T.23, codifies the right of a trustee (and this would include an estate trustee by virtue of the definition of "trust" in s. 1) to have expenses paid directly from trust property, or to be reimbursed from trust property:


23.1(1)  A trustee who is of the opinion that an expense would be properly incurred in carrying out the trust may,


(a) pay the expense directly from the trust property; or


(b) pay the expense personally and recover a corresponding amount from the trust property.


(2)  The Superior Court of Justice may afterwards disallow the payment or recovery if it is of the opinion that the expense was not properly incurred in carrying out the trust.


[39]           Although the respondent relies on Craven v. Osidacz Estate, [2010] O.J. No. 5154 (S.C.J.), I find that the result in that case assists the applicant more than the respondent.  In that case, Lofchik J. dismissed a motion by the deceased's spouse requiring the executor to repay to the estate all amounts received by the executor from the estate, representing legal fees incurred by the executor in defending two actions brought against the estate by the deceased's spouse, including a claim against the deceased's estate arising from the deceased stabbing to death the parties' eight-year-old son.  The executor and his mother were the only beneficiaries of the deceased's estate.


[40]           Lofchik J. acknowledged the duty of the executor to defend the claims made against the estate; the issue of repayment of fees reimbursed to the executor was ordered adjourned to the passing of accounts by the executor.  As to the request that the executor be restrained from using estate funds to pay further legal accounts, Lofchik J. ordered that the executor was restrained from doing so absent consent of all beneficiaries, and the deceased's spouse, or approval of the court.


[41]           In the case at bar, the applicant has a duty to defend the respondent's claim; although he has a co-existing interest as beneficiary of the estate to extent of 30 per cent, that does not defeat his right to be reimbursed for legal fees reasonably incurred.


[42]           The applicant's proposal for court oversight as to payment of further fees is not dissimilar to the approach in Craven, supra.


[43]           The respondent relies on DeLorenzo v. Beresh, [2010] O.J. No. 4367 (S.C.J.) and Coppel v. Coppel Estate, [2001] O.J. No. 5246 (S.C.J.).  However, in Coppel, the court did not consider s. 23.1 of the Trustee Act (or its predecessor) in finding that it was impermissible for the estate trustee to pay litigation accounts from estate funds without the consent of the beneficiaries or a court order.  This is specifically noted by Professor Oosterhoff (see page 136).  The subsequent decision in DeLorenzo relied, in part, on Coppel.


[44]           I do accept the analysis by Professor Oosterhoff, coupled with the authorities cited earlier in these reasons, and also considering s. 23.1 of the Trustee Act, that an estate trustee does not require the consent of the beneficiaries or a court order prior to having litigation expenses, reasonably incurred by the estate trustee, paid from estate funds."


3. OBA Trusts and Estates Section Annual Award Dinner


Kimberly Whaley, Ameena Sultan, Benjamin Arkin, Heather Hogan, Mark Handelman, Professor Oosterhoff and Deborah Stade all attended the OBA Awards dinner on June 10, 2014, where Archie Rabinowitz was presented with the 2014 Award for Excellence in Trusts and Estates. Congratulations to our colleague Archie, and to Nimale Gamage who received the Hoffstein Book Prize. The Widdifield Award was presented to Daniel Nelson for his article: "The Challenge of Digital Estate Administration for Executors".


Congrats to all!


4. Eastern Ontario Elder Abuse Conference, June 2014


Mark Handelman spoke at the Eastern Ontario Elder Abuse Conference in Kingston about Senior's Rights under consent and capacity legislation.


5. CBA Elder Law Executive


Congratulations to our Associate, Heather Hogan, who has been acclaimed Secretary of the Canadian Bar Association's National Elder Law Section, commencing September 1, 2014.


6. Annual Nice Knowledge Exchange, May 21, 2014


Kimberly Whaley, Mark Handelman and Marshall Swadron presented at a panel discussion on: "Law and Aging - The Rasouli Case at the Supreme court: Now Who Gets to Decide End of Life?"


7. Baycrest Foundation Professional Advisory Group, June 2014


Kimberly Whaley presented her paper on: "Responsibility of Professionals in Identifying Issues of Undue Influence", together with Dr. Michael Gordon who presented his paper on: "Who Can You Trust With Your Most Important End-of-Life Decisions? A Medical Perspective Following a Ruling From Ontario's Superior Court of Justice". Dr. Gordon's paper was recently published in ETPJ, Volume 33.  It was a well-attended seminar by professionals.


Link to Dr. Godon's paper

Link to Kimberly's paper  


8. STEP 16th National Conference, June 2014


The STEP National Conference was held on June 16-17, 2014, and the dinner on June 16, 2014, which was attended by Kimberly Whaley, Ameena Sultan, Benjamin Arkin, Heather Hogan, Professor Oosterhoff and Deborah Stade. The conference was fantastic.


9. Lexis Practice Advisor: Wills, Trusts and Estates Module, June 2014


Benjamin Arkin attended the Lexis Practice Advisor Canada launch event on June 25. Ben's contribution, Family Law Act Election on the Death of a Spouse is included in the Lexis Practice Advisor's Wills, Trusts and Estates module, which provides practical guidance for wills, trusts and estates legal practitioners.


10. CIBC Lunch and Learn Presentation, June 10, 2014


Benjamin Arkin delivered a seminar on "Family Law Issues in Estates" to trust officers, managers, and wealth advisors at CIBC Private Wealth Management.




1. Consolidated Practice Direction concerning the Estates List in Toronto Region effective July 1, 2014.




Commencing July 1, 2014, the new Practice Direction for matters on the Estates List in the Toronto Region will be in effect. 


A Summary of the changes made follows below:

  • Part I:              The Estates Office - no changes;
  • Part II:             Principles Guiding the Estates List - no changes;
  • Part III:            Matters heard on the Estates List - no changes;
  • Part III A.:       Transfers of matters to the Estates List - section 7 has changed; Requests to transfer matters commenced outside the Toronto Region to the Estate List, used to be governed by Rule 13.1.02, but they are not governed by Part III of the Consolidated Provincial Practice Direction.  The relevant paragraphs of Part III of the Consolidated Provincial Practice Direction are reproduced below: 
48. A high volume of requests to transfer civil proceedings to another county, often in another Region, are being received in the Central East, Central West, Central South and Toronto Regions. Counsel frequently seek to transfer a case, on consent. While the transfer may be appropriate in the circumstances of the case, the onus rests with the moving party to satisfy the court that a transfer is desirable in the interests of justice, having regard to the factors listed in rule 13.1.02(2)(b). It is not sufficient to bring a transfer motion orally, on consent, or to file a consent for an order to transfer a case to another county under rule 13.1.02..


49.  The moving party must file a Notice of Motion with a supporting affidavit, as required under rule 13.1.02(2). The moving party's affidavit must address the factors listed in rule 13.1.02(2)(b) and, as part of the relevant matters, must identify the current stage of the proceedings (i.e., whether further motions are anticipated in the proceeding, whether a pre-trial has occurred or is scheduled, and whether mediation has been held) and why the proceeding was originally commenced in the originating county. The affidavit should also address the estimated length of trial, whether it is a jury trial, and the number of parties and counsel.


50.  Counsel are not required to provide affidavit evidence about the availability of judges and court facilities in the other county to satisfy factor (viii) under rule 13.1.02(2).  This factor shall be addressed by the Regional Senior Judge in the Region where the motion is brought, after consulting with the local administrative judge or Regional Senior Judge for the other county.


51.  The Regional Senior Judge, or his or her designate, will hear all motions to transfer.  To allow the Regional Senior Judge to promptly determine all such motions, they shall be brought in writing.  Responding parties are strongly encouraged to file and rely exclusively on written submissions to allow the motion to be heard and fully determined in writing.  If an oral hearing becomes necessary, the motion shall be heard by teleconference arranged through the Office of the Regional Senior Judge in the Region where the motion is brought.  In addition to filing motion material pursuant to the Rules, all parties on a motion to transfer are encouraged to submit an electronic, scanned version of their motion materials, saved as a PDF file and submitted on a USB stick appropriately tagged or marked indicating the court file number.  This will facilitate the ability of the Regional Senior Judge to efficiently dispose of these motions, without the delay inherent in physical file transfers.

  •  Part IV:         

Administrative Matters - Courtrooms and Gowning - paragraph 9 has been amended to provide that Counsel need not gown for 9:30 Appointments.

  • Part IV:

Administrative Matters - Estates List Documents and Forms - no changes.

  • Part V:           

Scheduling matters on the Estates List:

      • Paragraph 11, has been amended to provide that "9:30 Appointments take place in Chambers and deal with minor and/or unopposed matters.  Counsel are not required to gown. Contested matters and applications or motions are conducted in open court commencing 10:00 a.m." 
      • Paragraph 12, has been amended to do away with the old online scheduling system (OSCAR). Instead the Practice Direction now provides that 9:30 Appointments or Hearing dates can be done through the Estates Office.
      • Paragraphs 13 and 14 remain the same with the exception of the fact that the new Practice Directions have replaced references to "Scheduling Appointments" with reference to "9:30 a.m. Appointments".  
      • Paragraph 15 is unchanged. 
  • Part V: 

Scheduling Matters on the Estates List - subsection B:  Passing of Accounts Applications - paragraphs 16 through 21 have not changed.  In particular, paragraphs 17 and 18 continue to specify the difference in procedure as between passing of accounts applications in which no request for increased costs has been filed (addressed in paragraph 17) and proceedings in which a request for increased costs has been file and served (paragraph 18). 

  • Part V: 

Scheduling Matters on the Estates List - subsection C:  Applications involving Wills where an Order Giving Directions is required - paragraphs 22 through 24 have not changed with the exception of the removal of reference to "Scheduling Appointments" and the use instead of "9:30 Appointments".

  • Part V: 

Scheduling Matters on the Estates List - subsection D: Guardianship Applications - paragraphs 25 through 28 have not changed with the exception of the removal of references to "Scheduling Appointments" and the use instead of "9:30 Appointments".

  • Part V: 

Scheduling Matters on the Estates List - subsections E, F & G:  have not changed with the exception of the removal of references to "Scheduling Appointments" and the use instead of "9:30 Appointments".

  • Part VI:          

Contested Matters - General - subsection A.  Confirmation of Application and Motions:   paragraph 38 has been amended to provide that Confirmation Forms must be filed at least 3 days in advance of the 9:30 Appointment or the hearing.  To be clear, the previous Practice Directions required 2 days and the new Practice Directions require 3 days.  This is in keeping with the change of procedure and new court forms that were implemented in November of 2013. 

  • Part VI:          

Contested Matters - General - subsection B.  Urgent Applications or Motions - has not changed.

  • Part VI:          

Contested Matters - General - subsection C. Pre-Trial Conference and Trial Dates - has not changed, with the exception of the removal of references to "Scheduling Appointments" which have been substituted by "9:30 Appointments".

  • Part VII:         

Contested Matters - Estates - subsection A. Orders Giving Directions: General, paragraphs 44 through 46 have not changed.  We note that the Practice Directions continue to provide that Orders Giving Directions should address, where applicable, the issues to be decided.

  • Part VII:         

Contested Matters - Estates - subsection B.  Orders Giving Directions:  Contested Passing of Accounts, this section has not changed. 

  • Part VIII:        

Mandatory Mediation - Rule 75.1 - paragraphs 48 through 50 have not changed with the exception of removal of "Scheduling Appointments" and the use of "9:30 Appointments" instead.

  • Part IX:

Materials for use of the Court - no changes have been made to subsections A. General Requirements and B. Multiple-appearance Proceedings:  Records for use at the Hearing.

  • Part IX:

Materials for use of the Court - subsection C. Multiple-appearance Proceedings:  On-going Endorsements/Orders Record - has not changed;  the party who starts a case is still required to keep an up-to-date Endorsements/Orders Record.

  • Part IX:

Materials for use of the Court - subsection D. Compendium of Documents - has not changed.

  • Part IX:

Materials for use of the Court - subsection E. Factums and Short Statements of Issues - has not changed.  In particular, the Court continues to be greatly assisted by factums on contested matters or where a large volume of materials is filed in support of an unopposed matter, even though in the circumstances the Rules do not mandate the filing of a factum.

  • Part IX:

Materials for use of the Court - subsection F. Evidence at Trial - has not changed.

  • Part X:

Matters without a Hearing - paragraphs 66 to 68 have not changed.

  • Part XI:  

Costs - no change.

  • Part XII: 

Applications for the Appointment of Guardians under the Substituted Decisions Act or Children's Law Reform Act - has not changed.

  • Parts XIII (Settlements Affecting Parties under a Disability), XIV (Applications under Part V of the Succession Law Reform Act) and XV (Family Law Act Elections) - have not changed.  

This new Practice Direction is dated, April 11, 2014 and is "endorsed by the Honourable Madam Justice Heather J. Smith of the Superior Court of Justice for Ontario and the Honourable Mr.  Justice Geoffrey B. Morowitz, Regional Senior Judge for the Superior Court of Justice, Toronto Region.


Notably, the Principles Guiding the Estates List  on all proceedings are:


a. The time and expense devoted to a proceeding should be proportionate to what is at stake in the proceeding; and,


b. Co-operation, communication, civility and common sense should prevail amongst all parties and counsel.


2. Costs:


(i) Cohen Estate v. Cohen, 2014 ONSC 3441 (CanLII) 




In this decision of the Honourable Mr. Justice Stinson, His Honour determined costs with respect to the setting aside of an order which had granted default judgment. 


The motion brought by the moving party failed, with the responding party having complete success.  In this case, the court applied the "loser pays" rule ordering that the applicant should pay the costs of the respondent.


With respect to the scale of costs, Stinson J., opined that ordinarily an order of costs is made on a partial indemnity basis. "Only in exceptional cases it is appropriate to depart from that rule.  Such cases include situations where the underlying conduct of the party is egregious or where allegations of fraud or other reprehensible conduct are made against an opponent but not proven".[1] His Honour was of the view that both such circumstances were applicable to the motion before him. The applicant sought to set aside an order on the basis of fraud, misrepresentation and other misconduct.  That conduct, the court opined would warrant an order for substantial indemnity costs. [2]    


Moreover, Stinson J., referred to the applicant as having made numerous unsupported and unsupportable allegations of misconduct as against the responding party including allegations of illegal activity, misleading the court and failure to provide evidence in support of such allegations.


Accordingly, in the result, the court ordered the moving party to pay costs on a substantial indemnity basis.


(ii) Columbos v Columbos, 2014 ONSC 2263 (CanLII)




The Honourable Madam Justice Healey made an order as to costs in the disposition of the trustee's motion for summary judgment and application for vacant possession of property owned by the deceased estate.


At the outset it is important to note that the estate trustee was entirely successful in the proceedings.


In rendering her decision, Healey J., opined that the estate had total success.

  • "The estate had total success;
  • The respondents obtained no relief from the court, other than an indulgence to permit them to attempt to recover the value of improvements to the property, if any, through a reference;
  • The respondents presented insufficient evidence to support any position advanced by them;
  • The positions taken by the respondents were therefore unreasonable;
  • The respondents failed to admit facts which should have been readily admitted;
  • The amount of experience and hourly rates charged by counsel;
  • The importance of these proceedings to the estate, which should not be understated, as the results achieved now permit the trustee to proceed with the administration of the estate, which had been stalled by the proceedings taken by the objectors." [3]

As such, stating that in appropriate circumstances, costs in estates matters should be awarded against the unsuccessful litigants, particularly where one of the circumstances is where untenable positions are taken by a party, the court found it an appropriate circumstance to award full indemnity costs payable by the unsuccessful respondents.


Her Honour did order that the costs were to be paid to the estate as a set off against the amounts due to the respondent beneficiaries, noting the option to the respondents to pay the costs at an earlier date to avoid accrual of post judgment interest which will run on the cost award.


As authority to support the full indemnity costs payable, Her Honour cited the case of Smith Estate v. Rotstein, [2010] O.J. No. 3266, 2010 ONSC 4487, 59 E.T.R. (3d) 279, and appealed as [2011] O.J. No. 5898, 2011 ONCA 833 with costs reconsidered following the Court of Appeal at [2012] O.J. No. 3375, 2012 ONSC 4200, 79 E.T.R. (3   d) 165.


(iii) Feinstein v. Freedman, 2014 ONCA 446 (CanLII) 




Feinstein v. Freedman, 2014 ONCA 205 (CanLII)




The Court of Appeal released its reasons and additional reasons and this January 2014 decision focuses solely on the costs of the appeal of litigation regarding the proper administration of the Riva Freedman Trust in an application regarding the appointment of a successor trustee. At first instance, Justice Parfett dismissed the cross-application and ruled on the application for advice and directions and ordered that costs of all parties should be paid out of the estate.


The Appellants appealed the order of the application judge and sought leave to appeal the cost award made by the application judge.


In reasons dated March 12, 2014, http://canlii.ca/t/g6c7r, the two appeals, and the motions for leave to appeal the costs awards were dismissed. 


This is a decision on costs where the parties were unable to agree on the quantum of costs associated with the appeals and as such costs were determined on written submissions to the court.


Paragraphs 5 -11 address the positions of the parties with respect to their costs followed by an analysis on the entitlement to costs at paragraphs 12 - 20.


The court addressed by way of first consideration, the question of whether the loser-pays regime should apply or whether costs should be paid out of the estate.


The court stated at paragraph 13 that:


"The loser-pays regime generally applies to estate litigation, such that successful parties are entitled to have their reasonable costs paid by the unsuccessful parties and that costs are usually only payable from an estate where the litigation arose out of the actions of the testator or was reasonably necessary to ensure the proper administration of the estate: McDougald Estate v. Gooderham, [2005] O.J. No. 2432 (C.A.), at paras. 78, 80, 85, 91; and Vance Estate v. Vance Estate, 2010 ONSC 4944 (CanLII), 2010 ONSC 4944, at para. 4. We found no error in the application judge's finding that the litigation enured to the benefit of the Estate and in her consequential ruling that costs should be paid from the Estate."


The further consideration of the court was whether there was divided success such that no party should be entitled to its costs. In this regard, the court determined that a reduction to the amount of the costs awarded to the successful parties on the appeals would be appropriate, the court however was not prepared to order the parties should bear their own costs.


In summary, the court found that the 'loser-pays' regime should apply, and that the successful parties are entitled to their costs.


With respect to the scale of costs payable, the court opined that the presumptive rule is that costs are payable on a partial indemnity basis subject to exception for an award of costs on a higher scale.  The court rejected the argument that costs ought to be paid on a higher scale. The court also opined that there was no basis for an award of costs on a substantial indemnity scale.


The court however determined that one of the parties was in a different position in that he had the duty as a trustee and accordingly awarded costs on a full indemnity scale for the estate trustee.


On the quantum of costs, the court applied the overriding principle in assessing costs, that they be fair and reasonable pursuant to Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 24.


Accordingly, the court in exercising its discretion regarding costs, made the following orders:


[26]      In exercising our discretion regarding costs, the general principles enumerated in rule 57.01 are instructive. The most relevant factors here are that the issues raised on the appeal were of tremendous importance to the parties and that the factual and legal issues were complex. None of the parties could have reasonably expected that, if unsuccessful on the appeals, they would not be required to pay significant costs. We note that the full indemnity costs of the OCL were $97,581.


[27]      We find that a reduction of the costs awarded to the successful parties should be made to reflect the fact that they were not successful in obtaining leave to appeal the costs award made by the application judge.


[28]      The Three Siblings were primarily responsible for responding to the appeals. It is not surprising, therefore, that their costs are the highest claimed. In our view, the costs sought are somewhat excessive in all of the circumstances. We fix their costs at $70,000.


[29]      The costs claimed by the Freedman/Prizant Grandchildren of $25,000 are entirely reasonable and shall be so ordered.


[30]      We also find the full indemnity costs claimed by Mr. Feinstein in the amount of $31,148 are reasonable and an order will go for their payment.


[31]      The costs claimed by Ms. Freedman Rotenberg are excessive. She played a relatively minor role on the appeals and should not be awarded more costs than the Freedman/Prizant Grandchildren. We fix her costs at $20,000.


[32]      All amounts awarded are inclusive of fees, disbursements and HST, and shall be payable jointly and severally by the OCL and the Ben-Choreen Appellants.


3. Solicitor's Negligence, The Limitations Act and Summary Judgment


Rajmohan v Norman H. Solmon Family Trust, 2014 ONCA 352 (CanLII)




In this matter, the appellant appealed an order of the motion judge dismissing a third party claim against the respondent on a motion for summary judgment. The appellant is the assignee of mortgages granted to the deceased, and the respondent the estate trustee of the estate.  More than 2 years following the death of the deceased, the appellant filed its third party claim alleging solicitor's negligence.


The motion judge dismissed the claim on the basis that it was time-barred by section 38(3) of the Trustee Act, R.S.O. 1990 c. T.23, Section 38(3) of the Trustee Act, which provides as follows:


"an action against an executor or administrator of a deceased person shall not be brought more than two years after the death of the deceased"


Noted in this Court of Appeal decision, the parties agreed that the Trustee Act would bar the appellant's third party claim unless either of the  doctrines of fraudulent concealment or special circumstances applied.


The motion judge determined that neither of these doctrines applied, and for that reason the Court of Appeal dismissed the appeal and notably, made the following comments with respect to fraudulent concealment:


Fraudulent Concealment


[3]    The motion judge carefully considered the rationale and requirements of the doctrine of fraudulent concealment as set out by this court in Giroux Estate v. Trillium Health Centre 2005 CanLII 1488 (ON CA), (2005), 74 O.R. (3d) 341 (C.A.), aff'g 2004 CanLII 18056 (ON SC), (2004), 69 O.R. (3d) 689 (S.C.). Justice Moldaver stated, at para. 29, that the doctrine prevents "unscrupulous defendants who stand in a special relationship with the injured party from using a limitation provision as an instrument of fraud". As the motion judge observed in Giroux, three elements must be established to make out the doctrine:

a)   the defendant and plaintiff are engaged in a special relationship with one another;

b)   given the special or confidential nature of the relationship, the defendant's conduct amounts to an unconscionable thing for the one to do to the other; and

c)  the defendant conceals the plaintiff's right of action (either actively, or as a result of the manner in which the act that gave rise to the right of action is performed).


[4]         In the circumstances of the present case, the motion judge was satisfied that the solicitor-client relationship between Mr. Solmon and Mr. Chandran was sufficient to qualify as a "special relationship" within the meaning of Giroux. She also found that Mr. Chandran's omissions were only apparent on a review of his file and so the concealment requirement was satisfied as well. However, she found the unconscionability requirement was not met because Mr. Chandan's conduct was merely negligent and she would not characterize it as unconscionable.


[5]         On appeal, the appellant submits that Mr. Chandran's negligent conduct flowed from a breach of his fiduciary duties to Mr. Solmon, and the serious breach of his fiduciary duties rendered his conduct unconscionable. The appellant argues that Mr. Chandran breached his fiduciary duty to Mr. Solmon by failing to obtain his written consent to the dual retainer as well as to the advancement of the mortgage funds when the conditions stipulated in Mr. Solmon's written instructions had not been satisfied.


[6]         The argument, while effectively advanced, founders on the motion judge's findings of fact. The motion judge found that Mr. Solmon probably gave verbal approval to both the dual retainer and the advancement of the funds. Given these findings of fact, the motion judge was entitled to characterize Mr. Chandran's conduct in the circumstances as negligent, but not unconscionable.


[7]         Further, we do not accept the appellant's alternative argument that these findings of fact reflect overriding and palpable errors by the motion judge. We cannot interfere with the inferences that the motion judge drew from the manner in which Mr. Chandran and Mr. Solmon had worked together in earlier transactions, and Mr. Solmon's considerable experience in the lending business. The Supreme Court, in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), 2014 SCC 7, has recently stressed that deference is owed to a motion judge's findings of fact as well as findings of mixed fact and law made on summary judgment.


[8]         The appellant further submits that the delay it experienced in gaining access to Mr. Solmon's client file constitutes a further breach of Mr. Chandran's fiduciary duties. Counsel argued that Mr. Chandran failed to obtain Mr. Solmon's written consent before leaving the file with the solicitor who took over Mr. Chandran's practice upon his retirement. We agree with the motion judge that the delay in making the file available was occasioned by the new solicitor's unilateral action. Neither Mr. Chandran nor the estate trustee caused that delay.


In the result the Court of Appeal was not  persuaded that the motion judge made any reversible error in concluding that the doctrine of fraudulent concealment did not apply in the circumstances of this case.


Notably, on the Limitations Act issue the court stated as follows:



[10]      The applicable limitation period is prescribed by the Trustee Act and not the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. The appellant submits the doctrine of special circumstances continues to be available and permits the court to add parties to an existing action after the expiration of the limitation period. Thus, it argues that because the plaintiff's action was commenced within two years of Mr. Chandran's death, the court could allow it to institute its third party claim after the expiration of two years. We do not agree. A third party claim is itself an action under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 1.03(1). The doctrine of special circumstances, if it applies, does not allow a party to commence a third party claim after the expiration of a limitation period: Joseph v. Paramount Canada's Wonderland, 2008 ONCA 469 (CanLII), 2008 ONCA 469, 90 O.R. (3d) 401, at para. 28.



4. Defendant's Knowledge of Fraud Relevant to "Juristic Reason" Analysis in  Unjust Enrichment Claim


Solarblue v. Aus - http://canlii.ca/t/g7cp0


In the recent case of Solarblue v. Aus [4], Justice McDermott concluded in an unjust enrichment claim arising from fraud, that actual or constructive knowledge of the fraud from which the unjustly enriched flowed is relevant to the analysis of the unjust enrichment test: "the absence of a juristic reason for the enrichment portion". 


This decision arguably expands the recognized categories of juristic reason to include the defendant's knowledge or lack of knowledge in unjust enrichment claims arising from fraud.


The Facts


A fraudster was hired by the plaintiff, a U.S. corporation, to find solar energy facilities in Ontario to purchase and sell at a profit. The fraudster, who had committed fraud and declared bankruptcy previously, advised the plaintiff that he had negotiated a contract with a company called "Kawartha Power Corp." and that he needed a deposit of $750,000.00. The fraudster asked the plaintiff to advance the funds through a bank account belonging to a numbered company of which the fraudster's common-law wife was the sole director and shareholder. That same day the fraudster executed an agreement on behalf of the numbered company with the plaintiff which stated that the numbered company would act as an agent of the plaintiff.


Some or most of the $750,000.00 deposited into the numbered company's account was used to renovate three properties owned by the wife, who suffered from cognitive and memory impairments as a result of an accident in 2008. The wife had owned these properties prior to starting a relationship with the fraudster in 2010.


The fraudster eventually admitted to the plaintiff that "Kawartha Power Corp." did not exist. The plaintiff commenced a claim against the fraudster, his wife, and the wife's numbered company for fraud, conspiracy and unjust enrichment.


The wife defended the claim arguing that she had no knowledge of the fraud, was told by the fraudster that he was using her numbered company's account for tax reasons and thought the money was an advance on a commission owed to the fraudster from a transaction he had closed.


The fraudster's defence and counterclaim were struck by the court for failing to comply with a contempt order.


Mareva Injunction


In November 2013 the plaintiff brought a successful motion for a mareva injunction and certificates of pending litigation on the wife's three properties.


The wife's motion to set aside the mareva injunction was dismissed.[5] In determining that the plaintiff had made out its prima facie case of unjust enrichment, warranting the mareva injunction, Justice Mackinnon noted that "there is no requirement that a defendant in an unjust enrichment claim have knowledge of the fraud or conspiracy by which he or she was unjustly enriched." [6] 


He also stated that there was a "strong inference" that the wife "knew or ought to have known" that the $750,000 was fraudulently obtained - the fraudster was a bankrupt, she knew he had never received such a large amount before, her explanation that her account was used for tax deferral made no sense, and she did not question the fraudster as to why he signed an agreement on behalf of her company. [7]


Juristic Reason: Relevancy of Knowledge of Fraud


The plaintiff brought a summary judgment motion seeking a declaration that the wife was unjustly enriched and a remedial constructive trust against the three properties owned by the wife.


As an adjournment was sought by the wife to review disclosure that had just been provided, the Court was asked by counsel to decide the narrow issue of whether the wife's knowledge of the fraud under which the funds were paid was a relevant factor to be considered as part of the plaintiff's claim for unjust enrichment.


Justice McDermott observed that the first two parts of the test for unjust enrichment were met in this case:


(1) the defendant was enriched; and


(2) there was a corresponding detriment;


(3) the third element on whether there was an absence of a juristic reason for the enrichment was in dispute.


The court summarized the required analysis for the third element:


1.   Firstly the court should determine whether there was a juristic reason under which the funds were paid under the established categories such as contract, gift or statute.  If there is no juristic reason for payment of the funds, the Plaintiff has made out a prima facie case for a finding of unjust enrichment.


2.    If, however, none of these established categories are applicable, the prima facie case remains rebuttable where there is "another reason to deny recovery."   In such a case, the court may review "all of the circumstances of the case" to determine whether there is a further reason to deny recovery.


3.    Where the Plaintiff has established a prima facie case by showing that none of the established categories apply, the burden is then on the Defendant to prove that there is a further reason to deny recovery beyond those established categories.


4.    In rebutting the prima facie case for a finding of unjust enrichment, the court is to have regard for two factors, being "the reasonable expectations of the parties, and public policy considerations."  Unlike the established categories of juristic reasons for payment of the funds, the categories for the second part of the test are not closed and an examination of these two factors may allow the court to "find that a new category of juristic reason is established."  The court makes it clear that "that this area is an evolving one and that further cases will add additional refinements and developments." [8]  


Quoting from Kerr v. Baranow [2011] S.C.R. 269 the court observed that "at the juristic reason stage of the analysis, the court may take into account the legitimate expectations of the parties... and moral and policy-based arguments about whether the particular enrichments are unjust". [9]


The wife admitted that in her situation there was no "established category" of juristic reason for her to keep the funds, as there was no contract, gift or applicable statute. She agreed that it was up to her to prove on a balance of probabilities "another reason to deny recovery." This is where, she argued, her knowledge or lack of knowledge of the fraud was both relevant and necessary. [10]


The plaintiff countered that there was no need to determine the state of the defendant's knowledge of the fraud to determine unjust enrichment. This was not a claim for recovery under the doctrine of knowing receipt where actual or constructive knowledge of the fraud was necessary for finding liability.


Relying on the SCC case of Garland v. Consumer's Gas Co. [2004] S.C.R. 629, McDermott J., concluded that the plaintiff does not have to prove that the wife had knowledge of the fraud.  The onus was on the wife to prove that she did not have knowledge of the fraud and that this is, at least in part, a factor to be taken into account in determining whether there is some other jurisitic reason for the payment of the funds into her company's account. [11]


Both counsel cited cases where knowledge was found or not found to be necessary to a finding of unjust enrichment: Den Haag Capital LLC v. Correia where the defendants were ordered to return profits from what they thought were legitimate investments but was a Ponzi scheme of which they had no knowledge; and Cusimano v. D.A.D. Cosntruction Inc., where a wife was allowed to keep funds advanced to her by her common-law spouse from a fraud perpetrated against the plaintiff, as she had no actual or constructive knowledge of the source of the funds. [12]




McDermott J., observed that "the crux of the third element" is that unjust enrichment requires a finding of an enrichment that is "unjust", where the court considers the equities between the parties. Accordingly, "if the ultimate issue under the third part of the test is whether the enrichment was unjust, as part of the determination of the issue, the wife's knowledge of the fraud may be relevant to that determination". The defendant "should be permitted to lead evidence of her state of knowledge as a component of her defence to the claim for unjust enrichment and to give voice to her position that a finding of unjust enrichment is not warranted under the circumstances.  It is entirely conceivable that this defendant's state of knowledge would be relevant in light of the defences raised by her, including change of position, lack of due diligence on the part of the Plaintiff and her actual lack of knowledge of the fraud". [13]


Justice McDermott concluded that:


I am determining in answer to the question raised on the motion, that there is no rule of law, as far as I can determine, that lack of knowledge of the fraud is never relevant to a finding of unjust enrichment. I am also making a finding that this Defendant's lack of knowledge (or her actual or constructive knowledge) of the fraud is relevant evidence which she is entitled to lead as part of her defence of there being a jurisitic reason for the money having been paid to her. This is especially so where this defendant alleges that she suffers from cognitive difficulties resulting from the 2008 motor vehicle accident. . . [emphasis in original] [14]


. . .The question posed was whether a finding of the Defendant's knowledge of the fraud was necessary to a finding of unjust enrichment. My answer to the question is that the Defendant's knowledge as to the source of the funds is relevant to a determination of unjust enrichment surrounding the third part of the test for unjust enrichment. And I also believe that it would be wrong to decide this case without being in a position to make a finding as to the knowledge of the Defendant as to [the] fraud committed on the Plaintiff. [emphasis added][15]


The court refused to grant a summary judgment in favour of the plaintiff and ordered a mini-trial to determine whether the wife could prove on a balance of probabilities that there is a juristic reason for the payment of the funds under the second part of the third element of the unjust enrichment analysis. The wife will be entitled to lead viva voce evidence as to her knowledge of the fraud.


The court did not say that knowledge is always relevant or necessary to a claim of unjust enrichment; Justice McDermott merely held that there is no rule saying knowledge is never relevant, implying that the relevancy of knowledge may be fact or case specific.  In this case, it appears that the defendant's cognitive impairments played a role in Justice McDermott decision that knowledge of the fraud was relevant. It will be interesting to see how this case is interpreted going forward or on appeal and whether her lack of knowledge of the fraud is found to be a valid jurisitic reason for her to keep the funds.

[1] Cohen Estate v Cohen, para 4

[2] Cohen Estate v Cohen, para 5

[3] Columos v Columbos, para 4

[4] 2014 ONSC 3482 ("Solarblue")

[5] 2013 ONSC 7638.

[6] Ibid. at para. 6.

[7] Ibid. at para. 13.

[8] Supra note 1 at para. 22.

[9] Ibid. at para. 23.

[10] Ibid. at para. 24.

[11] Ibid. at para. 28.

[12] Ibid. at paras. 29-31.

[13] Ibid. at para. 35.

[14] Ibid. at para. 36.

[15] Ibid. at para. 37.




1. 2014 CBA Elder Law Legal Conference

St. John's, Newfoundland

August 15-17, 2014 Until Death Do Us Part? Estate Claims Arising Out of Re-Partnerships:

A Cross-Provincial Perspective

Speakers: Kimberly Whaley and Heather Hogan



2. MD All Advisor Conference, Ottawa

September 8, 2014

Decisional Capacity - Red Flags and Estate Planning

Speaker: Kimberly Whaley, Ameena Sultan 


3. STEP Canada - 2014 Budget - Estate Planning and Charitable Gifting

September 10, 2014

Co-Chairs:  Gillian Musk and Elena Hoffstein

Speakers: Paul F. Keul CPA, CA, TEP ;Joe Marino, LLB, TEP; BMO Harris Private Banking; M. Elena Hoffstein,  Fasken Martineau 


4. Osgoode Professional Development, Webinar

September 11, 2014   

Fiduciary Accounts: Preparing, Passing, and Reviewing

Presenters: Saara Chetner, Heather Hogan, Birute Lyons


5. The Osgoode Elder Law Webinar Series

September 18, 2014

Keeping a Lid on It: How to Draft Wills and Trusts for the High Conflict Family


6. Practice Gems: The Administration of Estates 2014

September 23, 2014

Chair: Kimberly Whaley

Speakers: Clare Burns;  Archie Rabinowitz and David Lobl;   Jordan Atin;  Laura Tyrrell; Gwen Benjamin; The Honourable Lee  Ferrier, The Honourable Justice McEwen, Michael Press


7. Women in Wealth Management

October 5-7, 2014

Issues Dealing with an Aging Client

Speaker: Kimberly Whaley


8. The Osgoode Elder Law Webinar Series

October 7, 2014

Gifting and Charitable Donations in Advance Care and Estate Planning: There's No Such Thing as a "Free Gift"


9. STEP Canada - Family Business Transitions:  A Different Focus

October 15, 2014

Chair: Ted Polci

Speaker: Ian R. Campbell, FCPA FCA FCBV, Business Valuation Expert


10. STEP Winnipeg

October 23, 2014

Speaker: Kimberly Whaley , Predatory Marriages


11. LSUC Estate and Trust Summit  2014 - Intestacies, Partial Intestacies and Remedies

November 3, 2014

Speaker: Kimberly Whaley


12. STEP, Global Congress, Miami

Mandarin Oriental Miami

November 6-7, 2014

Kimberly Whaley, Attendee



13. STEP Canada - Estate Trustees: Do you really want the job?
November 12, 2014
Speakers: Archie Rabinowitz, Dentons Canada LLP; Barry Corbin, Corbin Estates Law  

14. Barreau du Québec, Trust and Estate Law, Montreal

November 28, 2014

15. STEP Canada - December Seasonal Event

Seasonal Reception, First Canadian Place, Music by Oui B. Jamon, sponsored by Sick Kids Foundation, Honourary Guest Speaker, Malcolm Berry

RSVP event


16. STEP Canada - Guardianships: Dealing with Minors and Adults Under Disability

January 14, 2015

Speakers: Kimberly Whaley, Whaley Estate Litigation and Craig Vander Zee, Torkin Manes LLP; Kenneth  Goodman, The Public Guardian and Trustee; Steve Adams, Comptroller and Accountant of the Superior Court of Justice; OCL and Linda Waxman, OCL


17. STEP Canada- Financial Abuse: Detection and Intervention

February 11, 2015 

Chair: Kimberly Whaley 

Speakers:   Doug Melville, Ombudsman and CEO for Banking Services and Investments (OBSI); Fiona Crean, Ombudsman for the City of Toronto; Laura Tamblyn Watts LL.B., Elder Concepts


18. STEP Canada - The Transfer of Wealth including the Family Cottage

April 15, 2015

Co-Chairs: Rachel Blumenfeld and Elaine Blades

Speakers: Gwen Benjamin, Wilson Vukelich LLP (TBC); Justin de Vries, de Vries Litigation


19. STEP Canada - Elder Care: A Practical Approach

May 13, 2015

Co-Chairs: Chris Clarke and Greg McNally

Speakers: Mike Love, Account Executive , Legacy Private Trust; Dr. R. Rupert, Rupert Case Management; Audrey Miller, Managing Director, Elder Caring Inc., and  Audrey Miller & Associates; Trevor Parry M.A., LL.B, LL.M (Tax), TEP, Executive VP and National Sales Director at GBL Actuaries and Consultants

IV. In Case You Missed It - Last Month's Highlights from Our Blog 


Click to link: 


More Consequences For Unrealistic Expectations In Litigation


What Lawyers should know about Canada's Anti-Money Laundering Regime: Factums & Webcast of proceedings before the Supreme Court of Canada


Re Buckley: Ignorance of an Attorneys Duties No Excuse


Florida Lawyer Disbarred for Using Mistress to Emotionally and Financially Exploit Older Adult Client


Paper: Responsibility of Professionals in Identifying and Addressing Issues of Undue Influence


Paper: Predatory Marriages: Legal Capacity to Marry and the Estate Plan


Court disapproves of beneficiary, strikes down gift


A Postscript on Villa v. Villa: estate litigation and the loser pays principle


CBC: MP Introduces Bill to Stop Murderers from Profiting From their Crimes: No More Survivor Benefits for Spousal Killers


New York Court of Appeal Used Equitable Principle to Stop Predator Spouse from Benefiting from Her Wrongdoing: Campbell v. Thomas 

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Kimberly A. Whaley
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Whaley Estate Litigation