Morris Manning

The plaintiff and defendant are siblings disputing the estate of their late mother, who died leaving over $21 million in assets.

The mother had historically treated her children equally in her estate planning.

In May 2013, she executed a new will leaving 75% of her estate to the defendant and 25% to the plaintiff.

Subsequently, between August 2013 and September 2014, the mother executed numerous documents that effectively transferred all her wealth to the defendant, primarily through a joint investment account with a right of survivorship, and disinherited the plaintiff entirely.

The plaintiff challenged the validity of the May 2013 will and the subsequent documents, alleging lack of testamentary capacity and undue influence.

The court found that the mother had testamentary capacity throughout.

However, the court concluded that the post-August 2013 documents and inter vivos gifts were procured through the defendant's undue influence and were therefore invalid.

The court upheld the May 2013 will as valid and ordered that the assets transferred to the defendant be held in a resulting trust for the estate, to be distributed 75% to the defendant and 25% to the plaintiff.

Following a prior summary judgment decision finding that a settlement had been reached between the parties, the defendants brought a motion to adduce fresh evidence concerning the date on which two settlement cheques were negotiated.

The moving parties relied on Rules 52.10 and 59.06 of the Rules of Civil Procedure and argued that bank statements showing the cheques were cashed earlier than assumed would materially affect the findings regarding their intention to be bound by the settlement.

The court held that the proposed evidence could have been obtained and presented with reasonable diligence during the original summary judgment motion and therefore did not satisfy the requirements for admitting fresh evidence under the Palmer test.

The court further concluded that, even if admitted, the evidence would not have changed the outcome because the defendants never demanded repayment of the funds after the plaintiff proposed revised payment terms.

The motion to adduce fresh evidence was dismissed.

Following a trial in which the defendants successfully defended multiple claims including breach of contract, spoliation, unjust enrichment, and property-related torts, the court determined costs.

The defendants sought substantial indemnity costs and recovery of professional fees for several witnesses characterized as participating experts.

The court confirmed that participating experts may justify reasonable compensation where their expertise arises from involvement in the underlying events.

Applying Rules 49 and 57.01 of the Rules of Civil Procedure and principles of proportionality, the court awarded partial indemnity costs to the date of the defendants’ offer to settle and substantial indemnity costs thereafter.

Following a successful summary judgment motion concerning a debt dispute and alleged settlement, the plaintiff sought substantial costs for the motion and the broader action.

The court held that the defendants had unnecessarily complicated what was a relatively straightforward settlement issue through procedural steps and a counterclaim.

However, the court emphasized proportionality and the principle that the losing party should not reasonably expect to pay for two senior counsel on a relatively simple motion.

Applying Rule 57.01 of the Rules of Civil Procedure and the principles in Boucher v. Public Accountants for the Province of Ontario, the court reduced the claimed costs and fixed partial indemnity costs for the motion.

The court deferred determination of the remaining action costs pending resolution of issues relating to the counterclaim.

The applicant sought appointment of an arbitrator to determine post‑closing purchase price adjustments under a share purchase agreement after the respondents refused to engage the designated accounting firm arbitrator and raised allegations of bias based on the accounting firms having previously retained the applicant’s law firm in unrelated matters.

The court reviewed the legal test for reasonable apprehension of bias applicable to arbitrators and held that the mere fact that an accounting firm had retained counsel for one party in unrelated insolvency matters does not give rise to a reasonable apprehension of bias.

The court found the respondents’ allegations meritless and concluded their conduct had derailed the agreed arbitration process.

Although a former judge was ultimately appointed as arbitrator on consent, the court determined the applicant had lost its contractual right to the designated arbitrator due to the respondents’ unjustified conduct.

Significant costs were ordered against the respondents for acting in bad faith and breaching earlier court orders.

The plaintiff brought a motion for summary judgment seeking to enforce an alleged settlement agreement arising from a dispute over unpaid invoices for agricultural produce.

The defendants argued that no binding settlement existed because the parties never reached agreement on a fundamental term, namely the schedule of repayment.

The court held that the parties had reached a binding settlement on the principal compromise amount through email exchanges and subsequent conduct, including the issuance and negotiation of cheques consistent with the proposed settlement.

Silence in response to a counter‑proposal combined with partial performance supported an inference that the repayment terms were accepted.

Summary judgment was granted enforcing the settlement against certain corporate defendants but not against the individual defendants.

The plaintiff sought an order staying or adjourning a scheduled trial pending the outcome of an appeal from an earlier interlocutory order dismissing an application related to enforcement of debt acknowledgments.

The plaintiff argued that Rule 63.01(1) of the Rules of Civil Procedure automatically stayed the proceeding, or alternatively that the court should exercise discretion under Rule 63.02(1) to stay the trial.

The court held that Rule 63.01(1) applies only to orders for the payment of money and therefore did not mandate a stay.

Considering the procedural history, repeated adjournments, and the age of the action, the court concluded that the interests of justice favored allowing the trial to proceed despite the pending appeal.

The moving party sought an order at the commencement of trial declaring entitlement to enforce notarized debt acknowledgments against the respondents as if judgments had already been obtained, and requiring payment of the amounts stated in those instruments.

The motion relied on a prior decision determining that the applicable limitation period for enforcement of German Submissions for Compulsory Enforcement was 30 years and argued that the earlier ruling created issue estoppel preventing the respondents from contesting certain matters at trial.

The court held that the prior motion addressed only the applicable limitation period and did not finally determine questions regarding the identity of the holder of the acknowledgments, the validity of their assignment, or the amount owing.

Because those issues were not essential to the earlier decision and were not conclusively determined, the doctrine of issue estoppel did not apply.

The respondents were therefore entitled to raise those issues at trial.

Following an order dismissing both the action and the counterclaim for delay, the court addressed the issue of costs.

The successful defendant sought partial indemnity costs and disbursements.

The plaintiffs argued that portions of the claimed fees resulted in double compensation for the same court appearance and that the hours claimed were excessive.

The court accepted that costs should follow the event but reduced the amount claimed in light of the circumstances and the parties’ shared responsibility for delay.

Partial indemnity costs and reduced disbursements were awarded to the defendant.

The defendant brought a motion under Rule 24 of the Rules of Civil Procedure to dismiss an action for delay arising from a dispute over the purchase of a yacht allegedly suffering engine defects.

The action had remained largely stagnant for more than a decade after pleadings were closed, with limited discovery activity and no meaningful prosecution by the plaintiffs.

The court held the delay was inordinate and inexcusable and raised a presumption of prejudice that the plaintiffs failed to rebut.

The defendant also demonstrated actual prejudice, including the loss of warranty claims against the engine manufacturer, the bankruptcy of a co-defendant manufacturer, and evidentiary issues arising from faded recollection and lack of preserved expert evidence.

The court dismissed both the claim and the defendant’s counterclaim for delay and, in the alternative, exercised its inherent jurisdiction to control its process.

Multiple defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike a lengthy statement of claim alleging fraud, conspiracy, breach of fiduciary duty, breach of trust, and unjust enrichment arising from unpaid German loan obligations allegedly concealed through asset transfers and trusts.

The court held that the pleading failed to set out material facts supporting the elements of the alleged causes of action and largely consisted of vague allegations and legal conclusions.

Several claims were struck as disclosing no reasonable cause of action, though the plaintiff was granted leave to amend.

The court emphasized the requirement to plead material facts and provide full particulars for allegations of fraud and related claims.

The plaintiff was also ordered to properly produce loan documents referenced in the pleadings.

Following a decision that granted a motion to strike certain affidavit evidence but dismissed an application challenging an arbitral award, both parties sought costs.

The respondent, successful on the application, sought substantial indemnity costs, while the applicant sought costs for its successful motion to strike.

The court declined to award substantial indemnity costs to either party, finding the conduct did not reach the threshold of reprehensible behaviour and there were no settlement offers.

The court held that each side had partial success and that reasonable partial indemnity costs would be similar for both.

As a result, the court ordered that each party bear its own costs.

The applicant sought an order quashing a municipal by-law that reduced the operating hours of licensed body rub parlours and holistic centres, and sought a declaration that the licensing by-laws had expired under the five‑year sunset clause in s.150(13) of the Municipal Act, 2001.

The court held that the sunset clause no longer applied because Part IV of the Municipal Act, 2001 had been repealed by the Municipal Statute Law Amendment Act, 2006 and replaced by broader licensing powers under the City of Toronto Act, 2006, which contained no sunset provision.

The court further held that municipal councils are not required to have “hard evidence” of harm before passing a by‑law and that the court’s jurisdiction is limited to determining legality rather than reviewing the reasonableness of municipal policy decisions.

The applicant failed to establish that the by‑law was illegal or enacted for an improper purpose.

The application was dismissed.

In a civil action involving allegations arising from a dispute between business competitors, a defendant by counterclaim brought a motion to sanction the counterclaim plaintiff for breaching the deemed undertaking rule by broadcasting discovery material on a radio show.

In connection with that motion, the moving party served a summons to examine the opposing party’s lawyer as a witness.

The counterclaim plaintiff moved to quash the summons.

The court held that the lawyer did not possess relevant or material evidence regarding the breach and that any communications would be protected by solicitor-client privilege.

The court further emphasized that summoning opposing counsel requires exceptional circumstances demonstrating necessity and high materiality, which were absent.

The summons to examine the lawyer was therefore quashed.

The applicant sought to set aside an arbitral award arising from a dispute between two agricultural businesses over the purchase and sale of carrot products conducted under the Fruit and Vegetable Dispute Resolution Corporation arbitration process.

The applicant argued jurisdictional errors, procedural unfairness, improper reliance on mediation materials, lack of arbitrator expertise, and the applicability of the International Commercial Arbitration Act.

The court held that the Arbitration Act, 1991 applied because the dispute involved two Ontario businesses and the arbitration was not international.

The application to set aside the award was statute‑barred because it was brought outside the 30‑day limit under the Arbitration Act and the court had no jurisdiction to extend the time.

In any event, the court found no jurisdictional error or procedural unfairness warranting intervention.

The defendants brought a partial summary judgment motion arguing that claims seeking enforcement in Ontario of German “Notarized Debt Acknowledgments” were barred by limitation periods.

The court characterized the acknowledgments as foreign agreements creating unilateral covenants permitting enforcement without a prior German court judgment, rather than foreign judgments.

Applying conflict-of-laws principles, the court held that German limitation law governed.

Under the German Civil Code, enforceable documents such as the acknowledgments are subject to a 30‑year limitation period.

As a result, the claims were not statute‑barred and the motion was dismissed.

The defendants brought a motion seeking to compel the plaintiff insured to attend for an examination under oath or alternatively an examination for discovery regarding the scope and quantum of damages arising from a flood loss claim under a property insurance policy.

The plaintiff argued that because the insurer had invoked the appraisal process under s. 128 of the Insurance Act, issues of quantum were exclusively within that process and outside the court’s jurisdiction.

The court rejected that position, holding that the statutory right to examine the insured under oath was not displaced by the election to proceed through appraisal and that the court retained jurisdiction to make procedural orders facilitating the statutory scheme.

The court also found the plaintiff’s proof of loss materially deficient and concluded that disclosure regarding damages was necessary.

A separate motion by the defendants to quash a summons requiring their appointed appraiser, who had since become counsel of record, to be examined was granted as the proposed examination constituted an unnecessary fishing expedition lacking evidentiary relevance to the pending motion.

In a real estate commission dispute, the plaintiff brokerage sought leave to amend its statement of claim to add an additional plaintiff and defendant and to plead rectification or rescission of an assignment of a listing agreement.

The defendant brought a Rule 21 motion to strike the claim on the basis that the assignment transferred all rights to commission to another brokerage and left the plaintiff without privity of contract.

The court held that amendments should generally be permitted unless clearly untenable or prejudicial and found the proposed amendments raised legally tenable issues regarding the enforceability of the assignment agreement, limitation periods, and potential duties owed by the proposed defendant brokerage.

The court also concluded that it was not plain and obvious that the limitation period had expired.

Leave to amend and add parties was granted and the motion to strike was dismissed.

At a Commercial List case conference in a civil action involving debt obligations and guarantees, the court addressed procedural scheduling and evidentiary issues relating to an upcoming summary judgment motion.

The principal issue on the anticipated motion was whether the plaintiff’s claims were statute‑barred under applicable limitation laws, potentially governed by German law.

The court directed the parties to produce supplementary expert reports addressing the applicable foreign law and its limitation periods, particularly in light of allegations of fraudulent concealment that might affect discoverability.

The court also addressed potential hearsay objections to affidavit evidence and ordered preservation and production of relevant documents for the period 1996–2004.