Jonathan Shepherd

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.

BZAM Ltd. and Cortland Credit Lending Corporation brought a motion for security for costs against Final Bell Holdings International Ltd. within an ongoing CCAA proceeding.

Final Bell had initiated a claim alleging fraudulent misrepresentation against BZAM and seeking damages and equitable relief, including a constructive trust.

The court determined that Rule 56.01 of the Rules of Civil Procedure, concerning security for costs, applies to claims within CCAA proceedings, and that Cortland, as a directly affected stakeholder, was entitled to seek such security.

Finding that Final Bell was ordinarily resident outside Ontario and had insufficient assets to satisfy a costs award, the court ordered Final Bell to post security for costs in favour of BZAM ($350,000) and Cortland ($147,000).

Additionally, Final Bell was ordered to pay the costs of the motion to BZAM ($20,000) and Cortland ($8,500).

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.

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.

The appellants, several Turtle Jack's restaurant franchisees, appealed a motion judge's order that set aside an Associate Judge's decision to add a new defendant (11554891 Canada Inc.) and allow amendments to their statement of claim regarding supplier contributions to an advertising fund.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that adding the new party and allowing the amendments would constitute an abuse of process due to inordinate delay, the dubious nature of the claims, and the fact that the amendments introduced new, statute-barred claims.

The court also upheld the costs award against the appellants.

The defendant brought a motion to permanently or temporarily stay the Ontario action in favour of proceedings in Florida.

The plaintiff, a Florida mortgage lender, commenced the Ontario action to enforce a personal guarantee signed by the defendant in Toronto.

The defendant argued that Florida was the more appropriate forum due to ongoing foreclosure and deficiency proceedings against his company in Florida, as well as a separate action he commenced there alleging fraud.

The court dismissed the motion, finding that the defendant failed to establish that Florida was the clearly more appropriate forum, as the key witnesses and the defendant were in Ontario, and the guarantee was signed in Ontario.

The court also declined to grant a temporary stay, noting that the Florida proceedings involved different parties and subject matter.

The plaintiff initiated an action against the defendant for a loan guarantee.

The defendant sought to stay the action on the basis of *forum non conveniens*, arguing a Florida proceeding was more appropriate.

Due to COVID-19 disruptions, a case conference was held to establish a timetable for the defendant's motion.

The parties disagreed on the hearing format and the defendant's obligation to file a Statement of Defence.

The court ordered the defendant to deliver a Statement of Defence and Motion Record by June 19, 2020, and set a detailed schedule for the motion, deferring the decision on whether the hearing would be oral or written.