Alastair James McNish

The Estate of Frank Mammone sought an order for the sale of two properties and the equal division of proceeds.

The respondent, Emilio Mammone, brought a cross-application to enforce an alleged agreement for the transfer of Frank's interest in the properties for $110,000, purportedly made just prior to Frank's death.

The court found no enforceable agreement, ruling that the respondent's evidence lacked the necessary corroboration under Section 13 of the Ontario Evidence Act and failed to satisfy the requirements of Section 4 of the Statute of Frauds or the doctrine of part performance.

Consequently, the respondent's cross-application was dismissed, and the properties were ordered to be sold as requested by the applicants, with an accounting for Emilio Mammone's management services since Frank's death.

The applicants were awarded partial indemnity costs.

The applicants sought a declaration that their homeowners’ insurer owed a duty to defend third party claims for contribution and indemnity brought against them after their child was injured in a motor vehicle accident.

The insurer denied coverage relying on a family member exclusion clause excluding claims for bodily injury to persons residing in the insured’s household.

The court held that the exclusion clause did not clearly extend to indirect claims by third parties because it lacked wording such as “arising out of” or language expressly encompassing indirect claims.

Interpreting coverage provisions broadly and exclusions narrowly, the court concluded the clause excluded only direct claims between household members.

As the third party claims were brought by non-household defendants, the insurer had a duty to defend.

The plaintiff landlord brought a motion under Rule 5.04 to add a newly incorporated company as a defendant, alleging it received assets, business opportunities, and benefits through fraudulent conveyances after the tenant abandoned leased premises.

The proposed defendant argued that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the presumption of discovery under s. 5(2) was rebutted because the proposed defendant corporation did not exist at the time of the underlying events.

Given uncertainty regarding when transfers occurred and when the plaintiff could reasonably have discovered the claim, the court found a triable issue of discoverability.

Leave was therefore granted to add the corporation as a defendant with permission to plead a limitations defence.