Allan D. Weiss

The deceased designated one of her two sons as the sole beneficiary of two segregated fund policies.

Following her intestate death, the other son claimed entitlement to half the proceeds, arguing the designated beneficiary promised to share them and held them on a resulting trust for the estate.

The court found insufficient corroborated evidence of a binding promise to share the proceeds.

Applying Mak (Estate) v. Mak, the court held that the presumption of resulting trust does not apply to beneficiary designations under the Succession Law Reform Act.

The proceeds were ordered paid out of court to the designated beneficiary.

This is a costs endorsement following the dismissal of an injunction motion brought by the plaintiff (former employer) against the defendants (former employees) for operating a competing business.

The defendants sought costs on a substantial indemnity basis or, alternatively, partial indemnity.

The court awarded the defendants full partial indemnity costs, rejecting the claim for substantial indemnity, as the plaintiff's conduct was not reprehensible and most work was done before the defendants' offer to settle.

The Plaintiffs, FactR Limited and Constructr Limited, factoring companies, brought a motion for summary judgment against R.R.I.C.H. Construction & Management Inc., 85242 Newfoundland & Labrador Inc. (the "Contract Defendants"), and Michael Mullett (the "Guarantor") for repayment of loans under invoice factoring agreements.

They also sought judgment against Roman Artemovych for conversion of a cheque.

The Contract Defendants, Guarantor, and Mr. Artemovych failed to file affidavits, attend examinations, or appoint new counsel after their previous lawyer was removed, leading to their Statements of Defence being struck.

The court granted summary judgment as requested, finding no genuine issue for trial regarding the claims for unpaid loans and the tort of conversion.

The plaintiff, a health services business, brought a motion for an interlocutory injunction against two former part-time employees (a chiropractor and a physiotherapist) and their new competing business.

The plaintiff alleged breach of fiduciary duties, misappropriation of confidential information, and breach of restrictive covenants.

The court dismissed the motion, finding that the plaintiff failed to establish a strong prima facie case that the defendants were fiduciaries or that the restrictive covenants were enforceable.

Although there was a substantial issue to be tried regarding the breach of confidence, the plaintiff failed to demonstrate irreparable harm, as damages could be quantified monetarily, and the balance of convenience favoured the defendants.

The plaintiff brought a motion to amend her statement of claim to add Ford Credit Canada Company as a defendant, the owner of a leased vehicle involved in a motor vehicle accident.

Ford resisted, arguing the claim was statute-barred under the Limitations Act, 2002.

The court found the plaintiff failed to exercise reasonable diligence in identifying Ford as a potential defendant within the two-year limitation period, despite having received information about Ford's ownership before the period expired.

The plaintiff's reliance on an erroneous police report and failure to conduct a routine MTO search, coupled with counsel's inadvertence, did not rebut the presumption of discoverability.

The motion to add Ford as a defendant was dismissed.

The appellant mortgagee appealed an order dismissing its claim against two original mortgagors on the basis of novation.

The court held that, despite a fraudulent scheme by a third party and subsequent assumption and renewal of the mortgage, the agreed facts stipulated that the fraud did not affect the appellant's legal position.

Applying the novation framework, the majority concluded that the no prejudice clause preserved the mortgagee's rights and that the evidence did not establish a novation releasing the original mortgagors.

The appeal was allowed and judgment was substituted for the outstanding mortgage balance, with costs to the appellant here and below.

The appellant appealed the dismissal of her application for declaratory and related relief arising from the respondent bank's freezing of her account and withdrawal of funds to cover an overdraft in a joint account held with her mother.

She argued that the applications judge failed to address non est factum and erred in not finding the bank negligent.

The court held that non est factum was not properly raised below and that the evidence did not obligate the applications judge to address it on his own motion.

The court further held that the bank was not negligent and that the appellant remained bound by her agreement to indemnify the bank for the overdraft.

The appeal was dismissed with fixed costs.