Arie Gaertner

The Estate of William Waters sought the return of over $30 million advanced by the deceased to his wife's personal support worker, Gillian Henry, over a ten-year period.

The Estate argued the funds were investments held on resulting trust, while Henry maintained they were gifts made during a secret intimate relationship.

The court found that the deceased, a sophisticated businessman, intended most of the advances as gifts, except for funds invested in a horse stable business (King of Hearts), which were held on resulting trust.

The court also found that the deceased improperly gifted $2.85 million of his incapacitated wife's money to Henry, which constituted unjust enrichment and must be returned.

Henry's counterclaim for sexual battery was dismissed due to lack of credibility and absence of corroboration required under the Evidence Act.

The defendants brought a motion to compel the plaintiff estate to produce unredacted solicitor files of the deceased, William Waters, arguing that the "wills exception" to solicitor-client privilege should extend to determine the deceased's intent regarding inter vivos transfers.

The estate claimed the transfers were impressed with a resulting trust, while the defendants asserted they were gifts.

The court found that the previous order allowed for disputes over privilege and that applying res judicata to informal case management directions would inhibit the process.

The court extended the "wills exception" from Geffen v. Goodman Estate to this case, finding ambiguity in the deceased's will regarding the nature of the transfers.

It ordered the production of all information shedding light on whether the transfers were gifts, including information on the deceased's capacity and susceptibility to undue influence, subject to a protective order to prevent a fishing expedition for claims against the solicitor.

This endorsement addresses the issue of costs following a successful dependant's support claim under the Succession Law Reform Act.

The applicant sought full indemnity costs, while the respondents argued for partial indemnity.

The court determined that the deceased testator was responsible for the litigation by failing to make adequate provision for the applicant's support, thus justifying costs payable from the estate.

However, considering the applicant's significantly higher settlement offer compared to the trial outcome, the respondents' more reasonable offer, and the applicant's excessive legal staffing, the court awarded costs on a partial indemnity basis, fixed at $160,000.00, inclusive of fees, disbursements, and taxes, payable by the Estate Trustees.

An adult child sought dependant's relief from their deceased mother's estate under the Succession Law Reform Act, claiming inadequate provision for support.

The court found the applicant was a dependant, as the deceased had systematically provided ongoing support, including food, shelter, and financial assistance, due to the applicant's inability to support themselves.

While the deceased's testamentary framework of providing an income stream was deemed appropriate, the amount was found inadequate to meet the applicant's accustomed standard of living.

The court ordered an increase in monthly support, adjusted annually for inflation, and required the applicant to vacate the deceased's condominium, denying a claim for past rent credit.

The defendants moved to set aside an ex parte Mareva injunction and certificates of pending litigation obtained by the plaintiff estate.

The estate alleged that the deceased transferred over $29 million to his personal support worker, which she used to purchase real estate, and claimed the funds were impressed with a resulting trust or obtained through fraud and undue influence.

The defendants argued the plaintiff failed to make full and frank disclosure on the ex parte motion and that the funds were gifts.

The court dismissed the motion, finding the plaintiff made adequate disclosure and established a strong prima facie case, a risk of dissipation of assets, and that the balance of convenience favoured continuing the injunction until trial.

A trial management conference was held to determine the procedures for an upcoming trial regarding an estate application.

The court directed that the trial proceed as a hybrid hearing, with most participants attending in person and one witness testifying virtually.

The court also issued procedural directions regarding the use of CaseLines, the marking of exhibits, and the preparation of a joint document brief.

The defendant moved to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte motion.

The plaintiff claimed a 50% interest in a condominium unit purchased by the defendant, relying on a trust agreement.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure of material facts on the ex parte motion, including the defendant's dispute of the claim and the plaintiff's failure to contribute to expenses.

The court also found the plaintiff failed to prosecute the action with reasonable diligence and that the equities favoured discharging the CPL, as the property was not unique and damages would be an adequate remedy.

The plaintiff brought a motion to compel answers to questions refused during the cross-examination of the defendant and his father on affidavits filed in support of the defendant's pending motion to discharge a certificate of pending litigation.

The court ordered the defendant to produce his current driver's license as it was relevant to an issue of residence raised by the defendant.

However, the court upheld the refusals regarding the defendant's banking and tax records, finding them irrelevant to the discharge motion and overbroad.

The court also upheld a refusal regarding the defendant's reasons for previously acting in person.

The defendant was awarded partial indemnity costs of $8,500.

The applicant's motion to oppose the confirmation of an Assessment Officer's Certificate of Assessment was deemed abandoned due to repeated non-compliance with court orders and failure to file materials.

The court declined a further adjournment request from the self-represented applicant and awarded costs of $10,000 plus disbursements of $880.48 to the respondent law firm on a partial indemnity basis.

Following the dismissal of the plaintiff's summary judgment motion against one defendant, that defendant sought costs of $51,010.55.

The court declined to award costs payable forthwith, finding the plaintiff did not act unreasonably or in bad faith in bringing the motion.

Citing access to justice principles and the plaintiff's lack of financial means, the court ordered costs in the cause.

The court deferred the plaintiff's request for costs against another defendant whose counterclaim was dismissed due to being an undischarged bankrupt, requesting further information on whether the bankruptcy trustee was notified.

This endorsement addresses a motion brought by Robert Bilich, a non-party, seeking to enforce Revised Minutes of Settlement from a previously settled trial and to obtain declarations regarding alleged misappropriation of funds by the defendants.

The settlement required the defendants to provide quarterly accountings to investors.

Bilich, claiming to represent an investor, alleged non-compliance.

The court found that the defendants had belatedly provided an accounting, thereby purging any potential contempt.

The court dismissed Bilich's motions, refusing an adjournment for cross-examination, as his true intent was to re-open settled trial issues and pursue allegations of misappropriation, for which he lacked status.

The court affirmed the defendants' ongoing obligation to provide quarterly accountings to investors.

The plaintiff brought a motion for summary judgment against his former real estate solicitor for professional negligence, alleging the solicitor failed to properly advise him regarding a $300,000 gift direction.

The plaintiff also moved to dismiss a counterclaim brought by one of the defendants on the basis that she was an undischarged bankrupt.

The court dismissed the summary judgment motion, finding that genuine issues of credibility and the factual context of the transaction required a trial.

However, the court granted the motion to dismiss the counterclaim, concluding that the defendant lacked the legal capacity to commence the action as an undischarged bankrupt, and the proceeds claimed did not constitute after-acquired property.

The plaintiffs brought a motion for the appointment of an inspector under s. 161 of the Business Corporations Act to investigate two defendant companies.

The defendants opposed, arguing the plaintiffs lacked standing as they were no longer shareholders.

The court found the plaintiffs had standing based on original share certificates.

The court granted the motion, holding that the companies' failure to provide financial statements prior to 2012 raised an index of suspicion of oppressive conduct, meeting the low evidentiary threshold for appointing an inspector.

The inspector's mandate was limited to issues not statute-barred.

Following a successful application for the partition and sale of a property, the applicant sought costs on a substantial indemnity basis due to the respondents' delay and failure to comply with prior orders.

The respondents argued the costs claimed were disproportionate and should be deferred to the reference.

The court rejected the deferral and awarded costs to the applicant on a partial indemnity basis, fixing the amount at $35,000 inclusive, noting that the respondents' misconduct had already been addressed through prior admonishments and costs orders.

The defendant brought a motion for summary judgment to avoid liability on a guarantee, arguing the plaintiff suffered no damages because it was a flow-through vehicle and its investors' claims were statute-barred.

The court dismissed the motion as unreasonable and lacking legal foundation.

The plaintiff sought costs on a substantial indemnity basis under Rule 20.06 and based on an unaccepted offer to settle.

The court awarded the plaintiff costs of $37,658.66 on a substantial indemnity basis, finding the defendant's motion was not reasonably brought.

An Ontario resident brought a proposed securities class action against a U.K. issuer alleging secondary market misrepresentation under Part XXIII.1 of the Securities Act following the Deepwater Horizon oil spill.

The defendant moved to stay the action in part, arguing Ontario lacked jurisdiction over claims of investors who purchased securities on foreign exchanges and that the matter should proceed in U.S. or U.K. courts.

The court held that the statutory cause of action under s. 138.3 constitutes a statutory tort presumptively connected to Ontario where an Ontario investor is deemed to have relied on the misrepresentation.

The legislation did not restrict claims to purchases on Ontario exchanges, and the defendant failed to rebut the presumptive connecting factor.

The court further found the defendant did not establish that foreign courts were clearly more appropriate forums.

A bank sought to recover approximately USD $5.4 million under guarantees related to credit facilities advanced to a UAE construction entity and alleged that settlement proceeds from unrelated international litigation were fraudulently conveyed to affiliated corporations to defeat its claim.

The plaintiff also sought to add numerous additional corporate and individual defendants, rely on the discoverability doctrine and misnomer exceptions to the Limitations Act, and pierce the corporate veil on the basis of a common enterprise among related companies.

The court held that most proposed defendants could not be added because the claims were statute‑barred and the discoverability doctrine did not apply due to the plaintiff’s lack of diligence in identifying corporate entities earlier in the litigation.

Although one entity was permitted to be added due to misnomer, the court found no fraudulent conveyance under the Fraudulent Conveyances Act and declined to pierce the corporate veil, emphasizing the principle of separate corporate personality.

The plaintiff’s claims were dismissed and costs were awarded to the defendants.

Following trial reasons granting judgment to the plaintiffs and dismissing a motion brought by a defendant, the court addressed entitlement and quantum of costs.

Applying rule 24 of the Family Law Rules and s. 131 of the Courts of Justice Act, the court found the successful parties presumptively entitled to costs.

The court concluded that the primary defendant had acted in bad faith through conduct including unfounded allegations of fraud and conspiracy, misleading the court in a Mareva injunction motion, and refusing to comply with a memorandum of understanding.

Substantial indemnity costs were therefore warranted.

The defendants were ordered jointly and severally to pay the plaintiffs and intervenors full recovery amounts for fees and disbursements.

Following a successful application under the Competition Act resulting in restitution orders and administrative monetary penalties against multiple respondents, the applicant sought partial indemnity costs of $231,768.35.

One respondent opposed the request, arguing the matter was over-lawyered, that legal research disbursements should be excluded, and that costs should be apportioned based on the relative administrative monetary penalties imposed.

The court accepted that the proceeding was complex and a matter of first impression requiring extensive investigation and research, but found some duplication of work by counsel.

The court reduced the overall fees by 15% while allowing the legal research disbursement.

Costs were ordered jointly and severally against the respondents.

The plaintiffs sought to enforce a Memorandum of Understanding resolving disputes arising from the breakdown of a common law relationship and corporate control over a property‑holding company.

The defendant argued the MOU was merely a framework for future agreements and that it had been signed under economic duress caused by earlier court orders and the threat of eviction.

The court found the MOU constituted a final and binding settlement agreement, noting the parties’ clear contractual language, extensive negotiations, and the defendant’s subsequent reliance on the agreement.

Allegations that the agreement was procured under duress or that earlier court orders were obtained by fraud were rejected.

The defendant’s motion to set aside prior orders was dismissed and the settlement was enforced.