Top 5 Civil Appeals From The Court Of Appeal (October 2014)

1. Cowderoy v. Sorkos Estate, 2014 ONCA 618 (Blair, Watt and Lauwers JJ.A), September 3, 2014 2. Mauldin v. Cassels Brock & Blackwell LLP, 2014 ONCA 641 (Strathy C.J.O. (In Chambers)), September 16, 2014 3. Mangal v. William Osler Health Centre, 2014 ONCA 639 (Feldman, MacPherson and Hourigan JJ.A.), September 17, 2014 4. Algonquins of Pikwakanagan v. Children's Aid Society of the County of Renfrew, 2014 ONCA 646 (Doherty, Tulloch and Benotto JJ.A.), September 23, 2014 5. Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671 (Juriansz, LaForme and Lauwers JJ.A.),September 30, 2014 1. Cowderoy v. Sorkos Estate, 2014 ONCA 618 (Blair, Watt and Lauwers JJ.A), September 3, 2014 In these appeals, which arose from a dispute over the division of an estate, the Court of Appeal addressed the consequences of a failure to allow joinder. Gus Sorkos and Victoria Cowderoy were in a common law relationship for 40 years. A year after Victoria's death, Gus married Rena. Gus died in 2008, having named Rena the beneficiary of his Registered Retirement Income Fund, valued at $287,185.

   Paul and Mark Cowderoy were Victoria's natural grandchildren. Gus treated them as his own grandchildren and they saw him as a grandfather. These appeals arose from claims made against Gus's estate by the Cowderoy brothers for the transfer of real property and cash and by Rena for dependant's relief under the Succession Law Reform Act, R.S.O. 1990, c. S. 26.

   Key to the appeals was the fact that the trial judge declined to consolidate the cases for trial, instead hearing the Cowderoy action followed by Rena's application. After hearing the cases separately, the trial judge held that the Cowderoys were entitled to a farm and cottage properties but dismissed their claim that Gus had promised them $350,000 each. He gave some dependant's relief to Rena under the SLRA.

   The Estate Trustee submitted before the Court of Appeal that the order that the Estate convey its two most valuable assets to the Cowderoys constituted a legal error. The brothers cross-appealed, seeking an order for payment of $350,000 to each of them from the Estate.

   Rena sought a new trial in which her action and the Cowderoy action would be tried together. She argued that a consolidated trial would allow for a proper assessment of the priority between the claims and potentially result in a higher value for the Estate against which her support claim would be calculated. She and the Estate Trustee, which also sought a consolidated trial, brought fresh evidence motions intended to show that the Estate was much smaller than determined by the trial judge and therefore would not have sufficient funds to secure the SLRA payments if the transfer of the properties to the Cowderoys was upheld. The Court admitted the fresh evidence and granted Rena leave to intervene in the Cowderoy appeal under Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194.

   Lauwers J.A. found that the trial judge failed to conduct a proper analysis of the priority between the claims made by the Cowderoy brothers and by Rena. While it was open to him to conclude that Gus had promised the properties to Paul and Mark during a 1985 "breakfast agreement" and to order specific performance of the agreement, he erred in requiring the Estate to convey the properties to them as a remedy for Gus's failure to bequeath them as promised. As Lauwers J.A. succinctly put it: "He found a promise to bequeath, but turned it into an obligation to convey." The appropriate remedy would have been to order that the promise be enforced and the bequest deemed to have been in Gus's will. The properties would then be part of the Estate, subject to the term that they go to the Cowderoys.

   Further, the brothers' claim that they should take the properties free of Rena's claim under the SLRA must fail because it flowed from the trial judge's erroneous characterization of their entitlement. In ordering that the Estate convey the properties to them, the trial judge recognized Paul and Mark as creditors entitled to specific performance. In fact, they were no more than "beneficiaries by specific bequest" and their entitlement is subject to the application of the SLRA.

   Lauwers J.A. found a number of errors in the trial judge's application of the SLRA. On consideration of the fresh evidence introduced by Rena and the Estate Trustee, he found that the trial judge relied on a vastly overestimated value of the Estate when determining Rena's entitlement to dependant's relief. Moreover, as noted, he disposed of the farm and cottage properties prior to making the relief order. Further, the trial judge reduced the specific bequest to Rena, when he instead should have considered it when assessing the quantum of support that was reasonable on her claim for dependant's relief. Finally, once Gus's bequest to the Cowderoy brothers was deemed to have been made, s. 71 of the SLRA - which provides that when a contract results in the transfer of property by will, dependant's relief claims can attach to the value of the property in excess of the consideration given under the contract - ought to have been considered. The failure of the trial judge to consider s. 71 left the Cowderoys better off than if Gus had fulfilled his promise to them and bequeathed the farm and cottage properties in his will.

   With respect to the Cowderoys' cross-appeal, Lauwers J.A. noted that the trial judge found that the alleged bequest of $350,000 to each of the...