Ira Book

The defendants moved for summary judgment to dismiss the plaintiff's action alleging undue influence and coercion in the transfer of an investment portfolio and real property.

The defendants also sought summary judgment on their counterclaim for defamation.

The court found that there were serious issues of credibility and conflicting evidence that could not be resolved on the documentary record.

The court declined to use its fact-finding powers under Rule 20.04, concluding that a full trial was necessary to assess witness demeanour and the human dynamics involved.

The motion for summary judgment was dismissed with costs awarded to the responding parties.

The plaintiff brought a motion for leave to amend his statement of claim under Rule 26.01 of the Rules of Civil Procedure to add a claim for malicious prosecution after related criminal charges had been withdrawn.

The defendants opposed the amendment, arguing the limitation period had expired and the proposed amendment constituted a new cause of action.

The court held that the amendment did not introduce a new cause of action because the material facts supporting malicious prosecution had already been pleaded, except for the favourable termination of the criminal proceedings.

The amendment merely added the subsequently occurring fact of withdrawal of the charges and an alternative legal claim arising from the same factual matrix.

Leave to amend was granted and the plaintiff was awarded nominal costs.