Unconscionable Procurement : An Old Doctrine Reawakened

June 24, 2020 Ian Hull Uncategorized 0 Comments

The case of Gefen v Gaertner 2019 ONSC 6015 revived the doctrine of unconscionable procurement, which had been dormant since the early 1900s, as an equitable principle capable of setting aside an inter vivos gift. The principle behind the doctrine is that it is unconscionable for someone to be instrumental in procuring a gift to themselves from a donor who does not fully appreciate his or her actions.

Facts of the Case

Henia Gefen, along with her late husband, Elias, had accumulated significant wealth through investing in real estate. The couple were married for 65 years and had three children: Harvey, Harry, and Yehuda. Unfortunately, relationships deteriorated in the family after Elias’s death, with Henia and Harvey becoming at odds with Harry and Yehuda.

In a series of inter vivos gifts, more than $25M in assets was transferred from Henia to Harvey after Elias’s passing. This was contested by Harry and Yehuda, who relied on the doctrine of unconscionable procurement. The court determined that the onus was on the party attacking the transfer (Harry and Yehuda) to prove, on the balance of probabilities, that a presumption of unconscionable procurement applies. This can be done by satisfying the following two requirements:

(1) A significant benefit has been obtained by the procurer; and

(2) There was active involvement on the part of that person in procuring or arranging the transfer from the maker of the transfer.

If these two requirements are satisfied on the balance of probabilities, the court then presumes that the transfers were prima facie unconscionable, and the onus shifts onto the other party in receipt of the gift to prove that the transfers were not unconscionable.

Specifically, the other party must prove the 3rd element, which is that:

(3) The gift was a voluntary, deliberate, well-understood act of the donor, and that the donor did appreciate its effect, nature, and consequence.

(See John E.S. Poyser, Capacity and Undue Influence, 2nd ed (Toronto: Thomson Reuters Canada, 2019)


This case has much wider significance in Ontario law. It continues to be the law that a significant benefit procured by the active involvement of the recipient may be set aside if the recipient fails to prove that the donor fully appreciated the nature, effect, and consequence of their gift. If this cannot be proved, the gift is deemed to have been unconscionably procured. The dormant doctrine of unconscionable procurement was awakened in Gefen v Gaertner, and an additional tool to challenge inter vivos gifts has been now revamped and reintroduced into the legal system.

Thanks for reading!

Ian Hull and Sean Hess

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