Christopher M. B. Graham

The court granted summary judgment in favour of Bennington Financial Corp. against 2724112 Ontario Inc. and Christopher Graham for amounts owing under a commercial equipment lease.

The court found that the defendants' defences were fully answered by the plaintiff's evidence, including admissions of payment and execution of the lease, and that there was no genuine issue requiring a trial.

The court reserved on interest and costs, inviting written submissions.

The applicant sought an interim injunction to preserve the respondent mother's assets pending a guardianship application, alleging the mother lacked capacity and was subject to undue influence by a new, much younger husband.

The court dismissed the motion, finding no medical evidence to support the claim of incapacity and that the issue of undue influence was premature as the mother was alive and deemed capable.

The court emphasized that a competent person has the right to make decisions deemed foolish by others.

The applicant, Jennifer Lynn James, brought a motion seeking to add Gideon Amofa as a respondent, validate service on him, and enforce a Florida temporary injunction.

The Florida injunction prohibited Gideon Amofa from contacting Carol Fern James, coming near her home or car, and froze assets held at TD Wealth in Toronto, even if jointly titled.

The court dismissed all three requests.

It found that service on Gideon Amofa was not properly effected under the Hague Service Convention, that Gideon was not a necessary party to the existing guardianship application concerning Carol's capacity, and that the Florida temporary injunction was not final or sufficiently clear for enforcement in Ontario.

The court also raised public policy concerns regarding the enforcement of an order that restricts a presumed capable person's contact with her husband and freezes her assets, especially when the relief granted exceeds what is available under Ontario law without a finding of incapacity.

This is an appeal from a motion judge's order finding Henia Gefen lacked capacity to manage property or instruct counsel, appointing a litigation guardian and guardian of property, and removing her counsel.

The appellant, Harvey Gefen, challenged the findings of incapacity and the procedural validity of appointing a guardian of property by motion.

The Court of Appeal found no extricable legal error or palpable and overriding error in the motion judge's capacity assessment or the appointment of a neutral guardian.

The court also affirmed that a guardian of property can be appointed by motion within an application, rejecting the argument that a full application process is mandatory, emphasizing the liberal construction of the Rules of Civil Procedure.

The appeal was dismissed with costs.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

This endorsement concerns a costs award following a successful partial summary judgment motion brought by Deborah Scott.

The Plaintiff had made serious, unfounded allegations of criminality, immorality, deceit, theft, fraud, and elder abuse against Ms. Scott, which the court found to be without foundation.

Ms. Scott sought full indemnity costs, while the Plaintiff argued for partial indemnity costs only.

The court determined that Ms. Scott should never have been a party to the litigation and that the Plaintiff's motivation was misplaced.

Citing precedent, the court awarded Ms. Scott full indemnity costs of $282,000, inclusive of HST and disbursements, to be paid from the settlement funds.

The Court of Appeal for Ontario heard a motion for a stay of a lower court order pending appeal.

The lower court had appointed a litigation guardian and guardian of property for an incapable 100-year-old individual, removed her counsel, and ordered costs.

The moving parties (the incapable individual and her son) sought to stay this order.

The court applied the three-part test for a stay, finding no serious issue to be tried regarding the incapacity finding or the guardian's appointment, especially given prior findings of unconscionable procurement of assets by the son.

The court also found no irreparable harm would be suffered by denying the stay, as the appointed guardian is accountable to the court.

The balance of convenience favored allowing the lower court's order to take effect.

Consequently, the motion for a stay was dismissed.

The defendant, a long-time assistant to the deceased, brought a motion for partial summary judgment to dismiss all claims against her in a complex estate and conspiracy action.

The plaintiff alleged the defendant was part of a conspiracy to strip the deceased's estate of assets to defeat a dependant's support claim.

The court found that partial summary judgment was appropriate and that there was no evidence the defendant participated in any conspiracy, acted as a fiduciary, or committed any of the alleged torts.

The motion was granted, and all claims and cross-claims against the moving party were dismissed.

The moving party sought to quash an appeal by the responding party, Henia Gefen, on the grounds that it was out of time.

The Court of Appeal dismissed the motion, finding that the appeal was not out of time because the time for appeal began to run from the date the judgment was finally settled and issued (October 16, 2020), rather than the date reasons were released (October 17, 2019).

This exception applied because the judgment was uncertain on a substantive point (paragraph 5, identifying deceased's assets) which was not part of the initial summary of disposition.

The court also noted that an extension of time would have been granted in the interests of justice due to factual connection between appeals and no prejudice to the moving party.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

An estate trustee sought to strike out a beneficiary's notice of objection to accounts on the grounds that the objections were barred by the two-year limitation period under the Limitations Act, 2002.

The court held that a notice of objection to accounts filed in response to an estate trustee's application to pass accounts does not commence a proceeding within the meaning of the Limitations Act and therefore is not subject to the basic two-year limitation period.

The court dismissed the appeal and ordered the estate trustee to pay costs personally, finding his motion to strike was unreasonable and designed to delay the passing of accounts hearing.

This endorsement addresses two motions and sets directions for a future case conference in two related proceedings: a family law application (FS-15-406705) and a guardianship proceeding (FS-17-21568).

The court reserved decision on the motions and outlined issues for the upcoming case conference, including the impact of the "deemed undertaking" rule on evidence and productions, and status reports on disclosure and mediation.

Counsel were directed to collaborate on a proposed order regarding the deemed undertaking rule.

The respondent, Joanne Chuvalo, brought a motion under Family Law Rule 25(19)(b) to correct an order declaring George Chuvalo lacked capacity to reconcile, seeking to change its designation from "temporary" to "final." The court dismissed the motion, finding that the original order was correctly designated as "temporary" because capacity is fluid and the order did not finally dispose of all substantive issues in the ongoing divorce application.

The court clarified the distinction between temporary and final orders, applying the "classic test" that an order is interlocutory if the merits of the case remain to be determined.

The court also found no common intention between counsel to designate the order as "final," which is a requirement for correcting a mistake under Rule 25(19)(b).

Costs were awarded to the Public Guardian and Trustee.

The applicant, Joanne Chuvalo, brought a motion for directions in a guardianship application concerning George Chuvalo.

She sought extensive disclosure of medical, financial, and legal records, and orders to revoke powers of attorney for property and personal care held by George's children, Mitchell and Vanessa Chuvalo.

The court narrowed the scope of disclosure, limiting medical records to periods surrounding the creation of the powers of attorney and dismissing most requests for financial and legal records as premature or disproportionate.

The primary issues were identified as the validity and potential revocation of the 2014 and 2016 powers of attorney.

Costs were reserved to the judge hearing the main guardianship application.

This endorsement addresses costs arising from a motion where an estate trustee during litigation was appointed.

The court rejected the suggestion to defer costs to the trial judge, affirming that costs of a motion should be dealt with by the motions judge.

Harry Gefen and the Estate of Yehuda Gefen sought costs on a substantial indemnity basis, which was declined as the court found no grounds for the higher scale based on the defence of the motion or unproven allegations.

The court also rejected the argument that costs should be denied due to refusal of dockets, finding sufficient particulars were provided.

Harry Gefen was awarded $45,000 plus HST in legal fees, plus disbursements including $35,765 for Professor Drummond's assistance and $14,725.55 for other disbursements.

The Estate of Yehuda Gefen was awarded $45,000 plus HST in legal fees and $738.12 in disbursements.

Henia Gefen and Harvey Gefen were ordered to pay these amounts within 30 days.

The moving party brought a motion to strike a solicitor's affidavit filed in support of an estates motion.

The moving party argued the affidavit was an improper use of a solicitor's affidavit, contained scandalous and vexatious material, and breached settlement privilege.

The court dismissed the motion, finding the affidavit was properly used to provide non-contentious background facts, did not contain scandalous material, and that any potential settlement privilege issues were too intertwined with non-privileged material to be struck at this stage.