Lorne Silver

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 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 defendants brought motions for security for costs against the plaintiffs, and the plaintiffs (as defendants by counterclaim) brought a cross-motion for security for costs against the plaintiffs by counterclaim.

The court granted the Langlois defendants' motion against the corporate plaintiffs, finding good reason to believe they had insufficient assets in Ontario.

The court dismissed the motion by a self-represented lawyer defendant, finding no evidence of opportunity cost to justify an award of security for costs in his favour.

The court also dismissed the plaintiffs' cross-motion, as the counterclaim was largely equivalent to a defence to the main action.

The defendant brought a motion to strike the plaintiffs’ claim concerning a transfer of real property allegedly gifted by the parties’ parents to the defendant.

The plaintiffs alleged the transfer should be voided based on mental incapacity of the donors, undue influence, and alleged oral promises that the property would pass to them as part of an estate plan.

The court reviewed the test for striking pleadings under Rule 21 and the “plain and obvious” standard.

While certain arguments based on the Statute of Frauds and evidentiary issues were premature at the pleading stage, the court concluded that the plaintiffs lacked standing and that the pleadings could not sustain the relief sought.

The motion to strike was allowed and costs were awarded to the defendant.

The applicants sought to remove the respondent as attorney for personal care and to obtain injunctive relief requiring reinstatement of PEG feeding for an incapable parent with end-stage Alzheimer's Disease.

After hearing evidence from the treating palliative care physician and submissions from all parties, the court applied the incapable person's best interests and prior wishes under the governing statutory scheme.

The court concluded that continued PEG feeds provided no benefit, had become burdensome, and that discontinuance was consistent with the authority granted under the power of attorney for personal care.

The temporary injunction was lifted and the respondent was permitted to discontinue PEG feeds in accordance with the medical opinion.

Appeal in estate litigation concerning whether funds in joint bank accounts with right of survivorship formed part of the deceased's estate or were held for the benefit of all five children.

Applying the framework in Pecore, the court held the presumption of resulting trust was rebutted by evidence that the deceased intended an immediate inter vivos gift of the beneficial right of survivorship to all of his children, with the legal holders of the accounts holding that right in trust for them equally.

The court declined to entertain a new secret trust argument raised for the first time on appeal.

On the cross-appeal, the court held the trial judge erred in refusing estate indemnification, because the litigation was required for the proper administration of the estate and was caused by the testator's own arrangements.

A blended costs order was appropriate.

The appellant brought a motion to remove counsel for two respondents based on allegations of misconduct in the underlying contempt proceedings.

The respondents brought a cross-motion for security for costs of the appeal.

The Court of Appeal dismissed the removal motion, finding no basis for the allegations and awarding full indemnity costs against the appellant.

The Court also dismissed the motion for security for costs, finding that the appeal raised a non-frivolous legal issue regarding the appellant's ability to purge his contempt after the underlying action had been settled, which involved the liberty of the subject.

The plaintiffs purchased a property for development but later discovered erosion issues.

They sought legal advice from the moving defendants on whether they could terminate the transaction.

The moving defendants advised them to close the transaction and sue the real estate agents later.

The plaintiffs followed this advice, suffered a loss on resale, and sued multiple parties, including the moving defendants for professional negligence.

The moving defendants brought a motion for summary judgment.

The court dismissed the motion, finding that factual conflicts regarding the advice given and the absence of affidavit evidence from a second lawyer present at the meeting created genuine issues requiring a trial.

The appellants appealed an order refusing to fully vacate notices of garnishment issued against their bank accounts.

The appellants argued the garnishments conflicted with prior freezing orders that permitted them to use funds for legal fees.

The Court of Appeal (majority) dismissed the appeal, holding that the motion judge properly exercised his broad discretion under Rule 60.08(16) of the Rules of Civil Procedure to uphold the garnishments while allowing limited access to funds for legal fees, preventing the frustration of the respondent's judgment.

The appellants appealed an order of the motion judge regarding an oppression motion and a bank's application.

The Court of Appeal found that the motion judge erred by failing to address the issues and arguments he was required to decide, including the factors regarding the oppression remedy and whether the bank had valid security in priority to a judgment creditor claim.

The order was set aside and the issues were returned to the Commercial List for determination.

The moving party, who was a party to the underlying proceedings, brought a motion to be added as a party to an appeal concerning an interim order affecting counsel.

The court found that the moving party should have been a party to the appeal and served with the relevant documents.

The court ordered that the moving party be added as a party, and that the overlapping appeals be expedited and heard together.

The court issued an endorsement to settle the terms of its orders following an appeal.

The court determined that interest on costs should run from September 29, 2004, the date the costs order was made, rather than the date of the main judgment.

The court declined to alter the trial judge's order regarding carriage of the reference, noting it was not argued and should not be modified absent agreement or if affected by the appeal reasons.

The court also declined to cross-reference the orders in the two separate actions, noting the agreement that there can be no double recovery.

The respondents in an appeal brought a motion to set aside an order dismissing their motion for interim costs.

They sought $5,000,000 to fund their legal expenses, arguing they could not afford to respond to the appeal and that the appellants were unfairly using corporate assets to fund their own litigation.

The Court of Appeal dismissed the motion, finding that the request for interim costs was tantamount to a motion to lift the automatic stay of the money judgment, which had already been denied.

The court held that while section 134(2) of the Courts of Justice Act provides broad jurisdiction to make interim orders to prevent prejudice pending appeal, the respondents failed to demonstrate that the appellants' use of corporate assets prevented them from effectively responding to the appeal or dissipated assets so as to undermine the effectiveness of any order on appeal.

In a complex family business dispute, the respondents moved to lift the automatic stay of substantial money judgments pending appeal, or alternatively for interim costs or security for costs.

The appellants brought a cross-motion to stay certain mandatory tracing orders pending appeal.

The Court of Appeal dismissed both motions.

The court found the appeals were not devoid of merit and the respondents failed to establish sufficient hardship or risk of asset dissipation to justify lifting the stay.

The court also found the appellants failed to demonstrate irreparable harm to justify staying the mandatory tracing orders.