S. Flaherty

The applicant brought a motion to remove his brother, the respondent, as the attorney for property and personal care for their mother, and to compel the return of over $439,000 transferred to the respondent by their parents.

The applicant also sought to strike the respondent's affidavit for failing to answer undertakings.

The court declined to strike the affidavit as the respondent's counsel took responsibility for the delay.

Applying the test for removal of a power of attorney, the court found evidence of financial misconduct but could not conclude on the motion record that removing the respondent was in the mother's best interests.

The court also found that the presumption of resulting trust applied to the inter vivos transfers, but directed a trial to determine whether the transfers were gifts and whether the power of attorney should be terminated.

The plaintiff brought a motion seeking an order compelling the responding defendants to provide particulars to allegations contained in their statement of defence and counterclaim.

The litigation concerned the validity of a transfer of the plaintiff’s interest in real property allegedly executed under a power of attorney, with the defendants asserting entitlement based on labour and financial contributions and alleging that the plaintiff had exhibited signs of dementia and diminished capacity.

The court held that the pleaded allegations were sufficiently vague that the plaintiff could not respond with anything more than a broad denial without further detail.

Applying established principles governing the function of particulars in pleadings, the court concluded that the requested particulars were necessary to define the issues and allow the plaintiff to plead intelligently.

The motion was granted and the responding defendants were ordered to deliver the demanded particulars.