Robert Reuter

The Estate Trustee applied to rectify a drafting error in the deceased's Secondary Will.

The will mistakenly directed the redemption of 150 Class D shares to fund a $2 million bequest, but the deceased owned Class E shares, and 300 shares were required to generate the necessary after-tax proceeds.

The drafting solicitor admitted the error.

The deceased's widow opposed the rectification, arguing it should await the trial of her separate negligence claim against the solicitor.

The court applied the Robinson test, found the solicitor misunderstood or failed to carry out the testator's instructions, and granted the rectification to reflect the deceased's true intentions.

The defendant brought a motion for a commission to take evidence in Hong Kong for himself and five non-party witnesses.

The plaintiff opposed on grounds of jurisdiction, the test under Rule 36, and the open court principle.

The court granted the motion for the non-party witnesses, with the trial judge acting as commissioner, finding it necessary for a fair trial as these witnesses were not compellable in Ontario.

However, the motion for the defendant's own evidence to be taken on commission was dismissed, as he failed to demonstrate a sufficient reason for not attending in Toronto, given his status as a party who had attorned to the court's jurisdiction and the significant costs involved.

The court also found that the commission evidence process, with the trial judge acting as commissioner, did not offend the open court principle or jurisdictional boundaries.

The moving defendants sought summary judgment dismissing a fraudulent conveyance and knowing assistance action as statute-barred under the Limitations Act, 2002.

The action arose from efforts to enforce a substantial divorce judgment where assets were allegedly transferred through corporate structures to defeat execution.

The court held that the material facts underlying the claims were not discoverable until an equitable receiver, appointed in aid of execution, obtained corporate records in 2010 that had previously been withheld.

The action commenced in 2012 was therefore within the limitation period.

The court also ruled that the defendant named as estate trustee of a deceased individual was not in fact the estate trustee but appointed her as litigation administrator of the estate under Rule 9.03(2).