Raymond A. Murray

This case involved cross-applications concerning an estate.

The deceased's will granted her son, Mario, an option to purchase her house within six months of her death at fair market value.

Mario failed to exercise this option within the deadline.

His sister, Susan, sought partition and sale of the property, an accounting of Mario's management of the deceased's property before and after her death, and the appointment of an estate trustee.

Mario cross-applied, seeking a declaration that he could still exercise the option.

The court found Mario's option had lapsed due to his failure to take meaningful steps to exercise it.

It ordered Mario to provide accountings for his management of the deceased's property and the Estate's assets (including funds in joint bank accounts subject to a resulting trust).

The court also ordered Mario to pay occupation rent for the property from November 2020, appointed an Estate Trustee During Litigation, and directed the sale of the property, requiring Mario to vacate.

The appellant, Salvatore Falsetto (father), appealed a trial decision that found substantial transfers of money and properties to his son, Salvatore Fillipo Falsetto (Sam), were gifts, not held in trust.

The trial judge also found no breach of fiduciary duty, undue influence, or unjust enrichment by the son.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual findings that the transfers were gifts.

While the Court of Appeal found that the son was indeed a fiduciary, it concluded that he did not breach his fiduciary obligations because the transfers were made with the father's full knowledge and consent, and at his instruction.

The defendant midwives brought a motion to strike the plaintiff father's claims against them, specifically the 'duty to report' claim.

The plaintiffs requested an adjournment to seek leave to amend their pleadings, which the court denied due to delay and inefficiency.

The court then applied the Anns/Cooper framework to the proposed 'duty to inform' the substitute decision-maker, finding it was essentially the established duty to obtain informed consent, which falls within the midwives' scope of practice.

As the scope of practice claims had already been struck in a previous ruling, the court struck the remaining duty to report claims without leave to amend.

The applicant, common-law partner of the deceased, moved for summary judgment to set aside the deceased's 2017 Will and validate a 1991 Will, alleging the 2017 Will was signed under suspicious circumstances due to the deceased's severe dementia.

The respondent, the deceased's son, sought to propound the 2017 Will.

The court found overwhelming evidence of the deceased's incapacity at the time of execution, despite no finding of undue influence, and granted the applicant's motion, setting aside the 2017 Will and associated Powers of Attorney.

This ruling addresses two motions to strike portions of a statement of claim brought by the plaintiffs, Jayelle and Sarel Alafi, against midwives and the Children's Aid Society of Algoma (CAS).

The Alafis sued for negligence, negligent misrepresentation, negligent infliction of mental suffering, intrusion upon seclusion, misfeasance of public office, and Charter s. 7 breaches, following the apprehension of their newborn child.

The court struck Mr. Alafi's negligence claims against the midwives related to their scope of practice, finding no duty of care owed to a non-patient third party.

The court also struck the plaintiffs' negligence claims against the CAS, reaffirming that the CAS's duty is solely to the child.

However, the court dismissed the CAS's motion to strike the plaintiffs' s. 7 Charter claims, finding it not plain and obvious that these claims would fail, particularly regarding the right to security of the person in child protection contexts.

Portions of the midwives' motion were adjourned for further submissions.

This appeal concerned a motion judge's order requiring the appellants to pass their accounts as Attorneys for Property.

The appellants argued that the respondent failed to obtain proper leave under s. 42(4)-(6) of the Substitute Decisions Act, 1992, that the test for leave was misapplied, that there was insufficient evidentiary foundation, and that the reasons for the decision were inadequate.

The Court of Appeal dismissed the appeal, finding that the motion judge implicitly granted leave, applied the appropriate test, and provided sufficient reasons for appellate review.

The plaintiff and defendants brought cross-motions to compel answers refused on discovery and to challenge claims of privilege in an action alleging misappropriation of funds by a son acting under a power of attorney.

The court held that financial records for tracing purposes need not be produced before liability is established, but ordered production of records showing how the transferred funds were characterized.

The court upheld the defendants' claim of litigation privilege over communications with their bookkeeper and refused to order disclosure of e-discovery search terms.

The court also ordered the plaintiff to produce his 2018 will and his social worker's file, subject to valid privilege claims, as they were relevant to the defendants' theory that the plaintiff's daughter was controlling the litigation.

This decision addresses a costs dispute arising from the plaintiff's initiation of multiple proceedings that were subsequently consolidated.

The defendants, Carleton University and Urban Security and Resilience Corp., sought costs thrown away due to the duplicative actions, arguing the plaintiff could have avoided multiplicity by adding parties to the initial action under Rule 5.04(2).

The plaintiff contended that the defendants' claims for costs were unsubstantiated and that the role of one defendant was an ongoing issue.

The court found that the plaintiff's multiple proceedings were avoidable and awarded each defendant $500 in costs thrown away, payable in any event of the cause, noting that the duplicative nature might also be considered by a Master in future costs assessments.

Two Requests for Directions were brought under the Indian Residential Schools Settlement Agreement (IRSSA).

The claimant, M-23620, sought directions to have her Actual Income Loss (AIL) claim determined by the court after an IAP Adjudicator issued an interim decision awarding compensation for other harms but leaving the AIL claim undecided.

Canada sought a review of the Adjudicator's interim decision and opposed the bifurcated procedure.

The court held that the bifurcated procedure established in the Kelly line of cases applies, allowing the AIL claim to proceed as a regular action in the Superior Court.

The court also held that Canada is entitled to pursue a review of the Adjudicator's decision concurrently with the court action.

Two Requests for Directions were brought under the Indian Residential Schools Settlement Agreement (IRSSA).

The claimant, M-23620, sought directions to have her Actual Income Loss (AIL) claim determined by the court after an IAP Adjudicator issued an interim decision awarding compensation for other harms but leaving the AIL claim undecided.

Canada sought a review of the Adjudicator's interim decision and opposed the bifurcated procedure.

The court held that the bifurcated procedure established in the Kelly line of cases applies, allowing the AIL claim to proceed as a regular action in the Superior Court.

The court also held that Canada is entitled to pursue a review of the Adjudicator's decision concurrently with the court action.

The defendants, Carleton University and the Steering Committee, brought motions for security for costs against the plaintiff, Wilson, Young & Associates Inc., under Rule 56.01(1) of the Rules of Civil Procedure.

The court dismissed both motions.

Carleton failed to establish "good reason to believe" the plaintiff had insufficient assets.

While the Steering Committee satisfied the condition of multiple proceedings for the same relief, its motion was dismissed due to undue delay and resulting prejudice to the plaintiff, and lack of a reasonable explanation for the delay.

This case conference endorsement addressed the assignment of the proceeding to active case management under Rule 77 and issues concerning examinations for discovery and costs.

The defendants sought to conduct examinations for discovery by videoconference due to the COVID-19 pandemic and the plaintiff's age and health.

The plaintiff preferred written interrogatories or delayed in-person examinations.

Citing *Arconti v. Smith*, the court ordered that examinations for discovery proceed by videoconference, finding that the benefits of proceeding outweighed the plaintiff's concerns and that further delay was unreasonable.

The court also ordered submissions on costs thrown away from previously cancelled discoveries.

The plaintiff sought costs after successfully opposing the defendants' motion to set aside or discharge a certificate of pending litigation.

The court had previously found that the plaintiff failed to make full and frank disclosure on the original ex parte motion for the certificate, but that the certificate would have been granted anyway.

The defendants argued against costs due to the disclosure failure.

The court reserved costs of the motion to the trial judge, citing divided success on the motion (plaintiff won on substantive issue, defendants won on disclosure finding), the reasonableness of the defendants' motion, the early stage of the action, and the potential for litigation conduct to be a factor at trial.

The defendants moved for summary judgment to dismiss the plaintiff's claim based on the expiration of the limitation period.

The plaintiff alleged misappropriation of software and breach of non-disclosure agreements and fiduciary duties.

The court applied the discoverability principle under the Limitations Act, 2002, finding that the plaintiff did not discover its claim until September 11, 2009, when it confirmed the defendants authored the disputed software.

Consequently, the action, commenced on September 9, 2011, was within the two-year limitation period.

The court dismissed the limitation defense, granting partial summary judgment to the plaintiff.

Secondary issues regarding discovery were adjourned or left to the trial judge.

A youth care worker brought a civil action against her employer and supervisor after being violently assaulted and sexually assaulted by a resident at a group home.

The defendants’ statement of defence was struck and they were noted in default, leaving a trial solely on damages.

The court permitted an amendment to increase the claimed damages because the defendants had notice and suffered no prejudice.

Applying principles governing non‑pecuniary damages for sexual assault and workplace negligence, the court awarded substantial general damages including aggravated damages, together with damages for past and future income loss supported by expert evidence.

The defendants were held jointly and severally liable for the total damages award.