Clients often ask to get judgment or their case dismissed quickly by just speaking with the Judge. While this is not possible, the Rules of Civil Procedure do allow for a Motion for Summary Judgment to put the case or certain issues before a Judge early on in the litigation process for a quick judgment. The Court of Appeal recently considered the test for a motion judge to consider on a Motion for Summary Judgment in the case of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 (CanLII) The Court made a decision which marks a new departure and fresh approach to the interpretation and application of Rule 20 of the Rules of Civil Procedure.
The Court of Appeal has ruled that in deciding whether to use the powers in Rule 20.04.(2.1), the motion judge must ask the following question: “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”
The full appreciation test continues to recognize the established principles regarding the evidential obligations on a summary judgment motion including the proposition that both sides must put their best foot forward. It will be interesting to see how motion judges apply the full appreciation test.
The question is often raised of what can be done when an attorney under a Power of Attorney is taking actions which are questionable or of concern. Such actions can include unusual bank withdrawals or financial mismanagement. Not just any individual can make a claim challenging what the attorney is doing. Read the rest of this entry »
Can an attorney appointed under a Power of Attorney be liable if the attorney does not act, even if the attorney knows that the Donee is incapacitated?
An attorney appointed under a Power of Attorney may resign pursuant to Section 11.(1) and Section 52.1 of the Substitute Decisions Act. Notice of such resignation is not required unless the attorney has previously taken steps and acted on the Power of Attorney. The answer, however, is much different if the attorney has acted under the Power of Attorney.
Video evidence of the execution of a Will does not guarantee its validity. In the case of Tucker v. Tucker Estate, 2009 CANLii 1664 Ont. S.C., the court dealt with a situation where the deceased’s execution of her Will and the witnesses’ confirmation were videotaped. The court reports that the videotape showed that: (a) the deceased had signed the Will; (b) that she had read it out loud; (c) it was the same wording as the handwritten Will that was being contested; (d) the witnesses signed the same paper in the presence of each other and the deceased; and (e) the witnesses were present for the signature of the Will. Based on the foregoing, the Will appeared to have met the formal requirements for the due execution of a will. Read the rest of this entry »
