CITATION: Farooque v. Korba, 2026 ONSC 3124
DIVISIONAL COURT FILE NO.: 446/25
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: IAN FAROOQUE personally and in his capacity as Estate Trustee of the Estate of Dorothy Margaret Farooque, Appellant
AND:
LARA KORBA, Respondent
BEFORE: D.L. Corbett, Matheson and Mew JJ.
COUNSEL: Joseph Figliomeni, for the Appellant
Bradley Phillips, for the Respondent
HEARD: May 25, 2026, in Toronto
ENDORSEMENT
[1]
Endorsement
Ian Farooque personally and in his capacity as the Estate Trustee of the Estate of Dorothy Margaret Farooque, appeals, with leave, from one of the orders in the decision of Faieta J. dated December 10, 2024 (the Decision).1 For the most part, the Decision is not questioned. The challenged aspect of the Decision is an order requiring the production of the deceased’s counselling records for the period from 2005 – 2009.
[2]
Background
Dorothy Farooque died in September 2021 and is survived by her two adult children who are the parties to this appeal. Her last will is dated in April 2021 and disinherits her daughter, the respondent. The respondent commenced an application seeking a declaration that the will is invalid and was obtained through undue influence by the appellant.
3There is no issue that the relevant time for a determination of undue influence is the time the will was made, in 2021.
4Interim orders were made in the application, including an order that the parties were entitled to seek and obtain all medical records relating to the deceased for a two-year period prior to the date of death. Those records were produced and contained nothing relevant to the issue of undue influence.
5The respondent brought a motion seeking more of the deceased’s medical records going back as far as possible. The motion judge declined the request for other medical records but ordered production of counselling records from 2005 – 2009, more than ten years before the relevant time period.
[6]
Analysis
The motion judge cited case law providing that it is innately offensive for an excluded relative to be permitted to go through a testator’s most private health information fishing for evidence. However, the motion judge erred in law in instead ordering production because the records “may inform the relationship” between the testator and the appellant. This low threshold would permit the fishing expedition that is expressly precluded in the case law.
7Further, the motion judge made a palpable and overriding error of mixed fact and law in relying on the absence of anything showing undue influence in the two years proximate to the challenged will. The absence of evidence closer to the relevant time does not provide a foundation for more disclosure of this type of sensitive personal information. Further the motion judge relied on handwritten notes that are undated and unsigned. Leaving aside the dispute about the authenticity of those notes, the respondent estimated they were from 2000 and 2001, twenty years before the disputed will and five years before the period of counselling.
8We need not address the other grounds for the appeal. The order for production of the counselling records should not have been made and is set aside.
[9]
Litigation Conduct
This panel is concerned about the conduct of this litigation. Apparently, the parties have not taken steps to move this litigation forward pending this interlocutory dispute, which has now caused a delay of about 1½ years. These therapeutic records ought not to have been requested in the first place. The two year period for disclosure of medical records was more than what was needed based on the record before this court. And those records are silent in relation to undue influence. There is no basis for the original request for more records. Nor should the issue have been pursued in interlocutory proceedings given the relatively small estate. It is not proportional. These interlocutory steps have only served to delay this dispute and cause expense to this small estate.
[10]
Costs
The parties agreed on $14,500 for costs of the appeal and motion for leave to appeal to the successful party. Notwithstanding that agreement, we consider that proportionality requires a lower amount and award $7,500, all inclusive, payable within thirty days.
D.L. Corbett J.
Matheson J.
Mew J.
Date: May 26, 2026