The expanded powers given to the Court on a motion for summary judgment challenge the Motions Judge to balance procedural expediency against the right to a trial. In Cranston v. Cranston, the Ontario Superior Court of Justice (Divisional Court) granted an appeal of summary judgment which found an advance of funds from a mother to her son to have been a gift rather than a loan.
The case highlights the difficulty in avoiding a trial where "the central issue is whether an oral, undocumented transaction constituted a gift or a loan." Although reported in the Estates and Trusts Reports, both the donor and the recipient of the funds were living and able to give viva voce evidence at trial. While the Motions Judge exercised her power under the new Rule 20.04(2.1) to weigh evidence and draw inferences, the Divisional Court concluded that the absence of viva voce evidence was fatal:
"In Healey v Lakeridge at paragraphs 28 to 32, Perell J. addressed the importance of considering whether the powers under r. 20.04(2.1) should, in the interests of justice, only be exercised at a trial. He suggested that this question is important to address directly because some issues “cannot be truthfully, fairly, and justly resolved without the forensic machinery of a trial.” An action that turns on credibility as much as this case does falls, in our view, into that category."
David Morgan Smith – Click here for more information on David Smith.
Listen to The Capital Account
This week on Hull on Estate and Succession Planning, Ian and Suzana talk about taking capital out of an account and what to consider along the way.
Craig and Bianca discuss demand promissory notes and the recent decision of Hare v. Hare  83. O.R. (3d) 766. The Hare decision specifically deals with the limitation periods applicable to the enforcement of a demand promissory note.
Craig and Bianca also discuss demand promissory notes in the estate context, and the considerations parents should take into account when making demand loans to children.
A legal dispute in New Brunswick has been gaining attention in the national media. At stake is the ownership of artwork having a value of over $100 million.
On one side is the Beaverbrook Art Gallery in Fredericton, New Brunswick; on the other is the Beaverbrook U.K. Foundation. Both the Gallery and the Foundation were established by the late Lord Beaverbrook (who was raised in New Brunswick and went on to become a prominent figure in British business and a confidante of Winston Churchill).
The issue appears to be simple: were paintings and sculptures once owned by the late Lord Beaverbrook gifted or merely loaned to the gallery? Apparently (and remarkably) the arrangement was not papered in any clear way. The matter is being arbitrated by former Supreme Court of Canada Justice Peter Cory and a decision is apparently expected in March.
A similar issue was considered by one of my partners, Justin de Vries, in his blog posting on September 27, 2006, in which the law relating to the making of gifts was considered in some detail. Simply put, to be valid a gift must be characterized by: (i) donative intent, (ii) acceptance by the recipient, and (iii) proof of delivery. It will be interesting to see the outcome.