Can Secret Recordings be Effective Evidence in Litigation?

by: , September 27, 2021

In estate litigation, the practice of making secret or surreptitious recordings is not uncommon. It’s not unusual for tape recorders to be hidden around the home, or for phone calls to be recorded without the consent or knowledge of the other party. This begs three questions: (1) What do judges actually think of this practice?…read more

The Cost Consequences of Our Conduct

by: , June 28, 2021

One of the first questions clients often raise at the outset of a retainer is how much the litigation is going to cost them. While many know that going to court is an expense endeavour, the parties’ conduct in a proceeding can have a great impact upon the ultimate costs ordered to be paid. By…read more

Fraud’s Cost Consequences

by: , January 18, 2021

At the end of litigation, the unsuccessful party is usually ordered to pay part of the legal fees of the winning party. The ever-present threat of having to pay costs to the winning party can act as a powerful disincentive for making groundless or unsubstantiated claims. The risk of being on the wrong end of…read more

The Costs of Litigation and the Loser Pays Principle

by: , April 14, 2020

When new clients embarks on litigation (to challenge a will or to remove an executor, for example), one of the first questions I am asked is whether they can recover their legal fees or costs from the estate or trust (as we all know, litigation can be expensive). The expectation is that the estate or…read more

A Touch of Modernity

by: , May 11, 2018

In its costs decision for Campbell v. Evert (previously blogged about here), the Ontario Superior Court of Justice further distilled the rationale and policy reasons informing the “modern approach” to fixing costs in estate litigation. Background As frequent readers of this blog may recall, Dr. Ewert (the “Deceased”) passed away in 2011. She left behind…read more

When is a Handwritten Will Valid?

by: , December 17, 2015

Linda was cleaning up her deceased sister-in-law Cynthia’s new apartment when she discovered a document inside a Sobeys bag. It was in the deceased’s handwriting and discussed distributing her property upon her death. It named Linda as executrix. As Linda continued to clean Cynthia’s residence she found another such handwritten document (this time, tucked away on…read more

Claims By or Against Estates Expire After Two Years

by: and , May 14, 2014

The decision of the Ontario Divisional Court in Cerqueira Estate v Ontario provides a useful discussion of the differences between the limitation periods in the Limitation Act and in the Trustee Act.  Whereas limitation periods under the Limitations Act begin running as soon as the cause of the claim is discovered (the principle of discoverability),…read more

Proper Lawyer Behaviour on Discovery, in the Age of Rob Ford

by: , November 20, 2013

Examinations for discovery can afford an excellent opportunity to determine the strength of the opposing party’s position. The discovery process also provides a chance to see a lawyer’s oral advocacy skills in action. But sometimes, a lawyer’s behaviour has the effect of disrupting the discovery process. In Tondera v. Vukadinovic, 2013 ONSC 6888 (CANLii), defence counsel…read more

Post Security or Go Home

by: , September 20, 2013

You don’t often hear about a motion for security for costs in estate litigation (if nothing else the parties are usually very much present in the jurisdiction and have some financial worth).  However, estate litigants have been ordered to post security for costs just as in any other civil litigation.  Equally, estate litigants have successfully…read more

The Reward For Civility: No Costs Against You

by: , September 12, 2013

Justice DiTomaso recently released an interesting costs decision following his reasons in the case of Stevens v. Fisher Estate (blogged on earlier this year by Jasmine Sweatman on All About Estates). Due to the good conduct of the parties, the Court ordered each side to bear its own costs. By way of quick recap of…read more