In Ontario, a Will can be challenged where the person who made it was effectively coerced into signing, such that the document reflects someone else’s wishes, not the testator’s. That is exactly what the court found in Abbruzese v. Tucci, a case that offers practical guidance for families and estate trustees dealing with allegations of undue influence.

The story behind the dispute

Maria and Carlo Ianerrelli immigrated to Canada from Italy in the early 1960s. They lived in a jointly owned home on McLeod Avenue in Toronto and had two daughters, Angela and Bernadette. Carlo died in 2005 and Maria remained in the home. In 2009, after separating from her second husband, Bernadette moved in with Maria. In 2007, Maria made a Will that left her house to both her daughters. In 2016, she changed course: she made Bernadette the sole executor and transferred title to the house into joint names with Bernadette.

Maria died in 2018 at age 88. After learning of the 2016 Will and the transfer of the home, Angela brought a court application challenging both. She alleged that Maria lacked the required mental capacity and that Bernadette had exercised undue influence over her mother.

How courts assess undue influence in Will challenges

After hearing evidence from both fact witnesses and expert witnesses, the court applied the factor-based approach described in Gironda v. Gironda. In plain language, the question is whether the beneficiary exercised an “overbearing” influence that displaced the testator’s free will. The court looks at the full context, including vulnerability, dependence, isolation, and whether the estate plan changed in an unexpected way.

What the court found in Abbruzese v. Tucci

The evidence showed that Maria was afraid of being alone and increasingly dependent on Bernadette for day-to-day living. Maria could not use the phone on her own. When she did speak with Angela—with the help of her grandson Joey—she would end the call quickly when Bernadette returned. Although there was no explicit threat that Bernadette would abandon Maria if she refused to change her estate plan, the court concluded Maria effectively had no meaningful alternatives and felt compelled to do what Bernadette wanted.

Justice Gilmore concluded that Bernadette had exercised “overbearing power” over Maria and that the 2016 Will was the product of undue influence.

Need advice? If you are considering a Will challenge, or defending one, timely legal advice can make a difference. Contact CP LLP to discuss the options, evidence, and court process that may apply in your situation.

Common red flags that can indicate undue influence

• A sudden change from a long-standing estate plan (especially where one child is unexpectedly excluded).
• A major transfer of assets before death (for example, putting a home into joint names).
• Growing dependence on the main beneficiary for care, transportation, meals, or communication.
• Isolation from other family members or friends, including controlled phone access and “supervised” visits.
• The beneficiary arranges the lawyer and is involved in appointments, instructions, or communications.
• Explanations for changes that sound rehearsed, inconsistent, or out of character for the testator.

If any of these issues are present, it is worth getting advice early. Undue influence and capacity cases are evidence-driven: key witnesses, medical records, solicitor notes, and the timeline of events often determine the outcome.

This article is provided for general information only and is not legal advice. Every situation turns on its own facts.

The Gironda factors (and how they played out here)

• Dependence on the beneficiary (emotional/physical needs): Maria was increasingly dependent on Bernadette, particularly after her PMR diagnosis. By 2016, the evidence suggested Maria’s day-to-day functioning was significantly limited.
• Social isolation: The evidence included refusals of outside care, discouragement of visitors, restricted communication with Angela, and Bernadette’s consistent presence during visits.
• Recent family conflict: The court considered the broader family dynamics and tensions relevant to how influence could be exerted.
• Recent bereavement: Maria’s husband’s death in 2005 had a lasting impact that affected her vulnerability over time.
• Substantial pre-death transfers to the respondent: Maria transferred the bulk of her estate by placing the home into joint names with Bernadette in 2016, putting significant assets under Bernadette’s control before death.
• A new Will inconsistent with prior Wills: The 2016 Will departed from the 2007 Will, which had treated both daughters as beneficiaries of the home.
• No clear explanation for unexpectedly excluding a family member: The reasons given for the change were treated as unpersuasive; the court found the explanations appeared repeated in a “programmed” manner (as characterized in the evidence).
• Use of a lawyer previously unknown to the testator and chosen by the respondent: The evidence showed the lawyer involved was not Maria’s prior solicitor and that the meeting was arranged through Bernadette’s connections; the court also inferred Maria was coached on what to say and do in her interviews.

The Court of Appeal recently applied that same kind of practical approach in the interpretation of commercial lease.

In Convocation Flowers Incorporated v. Anisa Holdings Ltd., 2026 ONCA 145, the Court upheld an application judge’s decision that the landlord repudiated the lease by cutting off the tenant’s access to loading docks, even though the lease did not explicitly give the tenant the right to use those loading docks.

When it initially leased the space, the tenant had negotiated an agreement with the former landlord to enlarge certain loading docks at the commercial property. That agreement was included as a schedule to the lease. When a new landlord bought the property, it wanted to use those loading docks for its own business, and notified the tenant that its access was being cut off.

The landlord relied on a clause in the lease that it could establish rules and regulations governing use and occupancy of the premises, including common areas, in its sole discretion. The loading docks and the driveway leading to them were part of the common areas. Most significantly for the landlord’s position, there was nothing in the body of the lease that said the tenant was guaranteed a right to use that part of the property.

The Court of Appeal agreed with the application judge’s interpretation of the lease as a whole in a commercially reasonable manner. The fact that the prior landlord had agreed to expand the loading docks so the tenant could operate its flower distribution business meant that, even if some parts of the lease gave the landlord discretion to alter the common areas, it could not do so in a manner that would alter or eliminate the tenant’s use of those negotiated improvements to the loading docks.

By doing so, the landlord fundamentally breached the lease, amounting to a repudiation that the tenant could accept and treat the lease as being terminated. That meant the tenant was in the right to move out and sue for damages.

Add this decision to the body of contractual interpretation cases where the principle of “interpreting a contract as a whole in a commercially reasonable manner” is clearly another way of saying, apply common sense.

https://www.canlii.org/en/on/onsc/doc/2026/2026onsc1544/2026onsc1544.html

A recent Court of Appeal decision addresses an interesting (no pun intended) interest provision in a mortgage agreement that the trial judge had found to violate section 8 of the Interest Act. In Rabinowitz v. 2528061 Ontario Inc., 2026 ONCA 21, the Court of Appeal considered a mortgage agreement relating to a vacant property that a purchaser intended to develop. In response to a request by the purchaser for an extension of the closing date to allow for additional due diligence, the vendor requested a loan of $600,000. The loan was secured by a mortgage on the property, with the intention that the funds would be credited toward the purchase price. Regarding interest, the mortgage agreement provided as follows:

“The Interest Rate of the Charge shall be 0% until the Balance Due Date on July 10, [2018]. Beginning July 10, [2018], the Interest Rate of the Charge shall be 12.0%, calculated monthly, not in advance, until the payment of the Charge in full.”

At trial, the court found that the jump in interest from zero to 12% on the balance due date meant that interest would only be payable if the principal was not paid, i.e. upon a default. Accordingly, the provision violated the Interest Act. The Court of Appeal granted the purchaser’s appeal of this finding. Relying on the settled law that ordinary commercial contracts must be interpreted in accordance with their plain language as understood by a reasonable business person, the Court emphasized the significance of the interest rate commencing prior to the mortgage being in default (July 10th, rather than July 11th), and the fact that the interest-free period was premised on the completion of the purchase agreement. Once the sale did not close, the mortgage became a standalone agreement, with interest at 12%, as the parties agreed with the benefit of legal advice.

Although the facts of the Rabinowitz decision are unique, the importance the Court of Appeal placed on the timing of the increase in interest – before a default – serves as a reminder of the limited application of section 8 of the Interest Act. It only applies to prevent lenders from increasing the interest burden on mortgage arrears above the rate payable on principal money not in arrears. If a lender negotiates for the interest rate to jump just before a default (and as late as the due date for repayment of principal), the Court of Appeal has signaled such a provision will be enforceable.

A dispute arose between PF and ABC whether the earn out provision had been triggered.

PF asserted that a sale-leaseback arrangement entered into by ABC with a third-party meant the earn out was immediately payable because ABC had sold a “material portion of the assets” of the business purchased. ABC disagreed. ABC asserted that the impugned transaction did not constitute such a sale.

The issue was tried by Justice Jana Steele of the Superior Court of Justice. Justice Steele dismissed PF’s claim. PF appealed to the Ontario Court of Appeal (“OCA”).

In December 2025, the OCA dismissed PF’s appeal (Project Freeway Inc. v. ABC Technologies Inc., 2025 ONCA 855).

In doing so, the OCA , agreed with what Justice Steele described as her practical, common sense approach to contractual interpretation.

Her Honour had concluded that a plain reading of the language of the PF/ABC share purchase agreement did not answer the question of whether the earn out had been triggered by the sale-leaseback arrangement.

Her Honour went further to indicate that further interpretive tools were required to resolve the ambiguity: not to overwhelm the language in the contract but rather to properly inform the court as to the objective intention of the parties by the words they used in the agreement.

In adopting this approach, Her Honour applied the guiding principles to contract interpretation established by the Supreme Court of Canada in 2014 in a seminal case, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.

Accounting for the reality contracts are not entered into in a vacuum, Justice Steele analyzed the “factual matrix” at the time the share purchase agreement between PF and ABC was entered into – being the relevant facts surrounding the agreement that spoke to what the parties intended by the contract and how that intent informed the clause in issue.

Consistent with Sattva, Her Honour also adopted a “purposive” approach to contractual interpretation rather than an approach “dominated by technical rules of construction”. The OCA endorsed this approach as enabling Justice Steele to best understands the purpose of the sale purchase agreement between PF and ABC as a whole.

Finally, as part of her practical and common sense approach, Justice Steele preferred ABC’s submission as yielding a commercially reasonable interpretation of what was meant by the language in dispute rather than that put forward by PF. The OCA saw no reason to interfere with such finding.

In doing so, Justice Steele concluded that there was nothing in the sale-leaseback arrangement that affected or triggered the earn out.

Ultimately, the OCA concluded in properly accounting for the factual matrix, adopting a purposive approach and seeking to reach a commercially reasonable interpretation, Justice Steele had correctly applied Sattva and there was no basis to overturn or interfere with her decision.

As is the generally the case in the business world, the OCA’s decision in PF v ABC is an endorsement of the benefits of good, practical, common sense.

The effect these shifts will have on the transportation industry seems clear: less business to go around, and a still saturated competitive market fighting over reduced freight volumes. Bankruptcies and receiverships will likely follow, unfortunately.

For companies that have not reached a critical stage, it is good time to assess whether they have legal risks to attend to while they have time (and cash flow) to spare. If recent experience is anything to go by, four areas in particular should be considered:

Shareholder Disputes: Many of the businesses most at risk of financial trouble ahead are small, independent transportation companies. Such companies were often founded without much formality and grew rapidly when times were better (i.e. during the Covid-era boom in shipping). It is often the case that corporations that grow quickly do not revisit the corporate records that were created upon incorporation, including articles, by-laws, and shareholder agreements. If not, now is the time. Shareholder disputes are often much more straightforward and resolvable where the rules that govern are clearly defined.

Real Estate: Land and favourable long-term leases are often transportation companies’ most valuable assets. Leases and title documents should be reviewed carefully to ensure there are no surprises if such real estate assets are to be relied on for financing.

Employment: Companies that need to downsize or layoff workers must be careful to ensure that they are complying with applicable employment statutes (often the Canada Labour Code in the case of interprovincial transport). Employment contracts should be reviewed and updated to ensure compliance. Termination pay and severance can become a significant drain on a company’s finances if not handled carefully.

Receivership: Although in many cases a death sentence, with planning and forthright communication with lenders, companies can use a receivership to give themselves breathing room to restructure, negotiate down liabilities, and find a path to continued operations or a (relatively) painless exit. Gaining familiarity with the process well before it becomes a possibility is a prudent exercise.

No doubt, there will be a rough road ahead for many transportation companies. Assessing legal risks and taking proactive steps to address those risks is a valuable exercise for the industry.

Background

Carmelo Lagana, a shareholder of 2324965 Ontario Inc., sought to enforce his right to receive audited financial statements from the corporation, as mandated by the OBCA. The corporation, co-founded by Lagana’s late father and his business partner, David Power, had not provided audited financial statements since its inception in 2012. When a dispute arose in 2021, Lagana requested statements covering the years 2013 to 2020. Lagana’s request was initially granted with the Superior Court ruling that the request was not subject to the two-year limitation period under the Limitations Act, 2002.

The Divisional Court

The corporation and Power appealed the decision, arguing that the demand for audited financial statements constituted a “claim” under the Limitations Act, 2002, and was therefore subject to the two-year limitation period. The Divisional Court agreed, finding that the application judge erred in determining that the Limitations Act did not apply. The court held that the request for financial statements was indeed a “claim” as it sought to remedy a loss or injury resulting from the corporation’s failure to comply with its statutory obligations.

The court held that Lagana was aware of the corporation’s non-compliance by at least 2021, when he first requested the audited statements, thus starting the limitation period.

The Court of Appeal

The Court of Appeal upheld the Divisional Court’s decision, affirming that the Limitations Act, 2002 applies to compliance orders under the OBCA. Justice Miller emphasized that the corporation’s statutory obligation to provide audited financial statements correlated with a shareholder’s right to receive them. This right, when unfulfilled, constitutes a “claim” under the Limitations Act, 2002, thereby triggering the two-year limitation period.

The court rejected the argument that compliance orders under the OBCA are merely statutory obligations without corresponding rights. Instead, the obligation to provide audited financial statements is not a free-floating duty but a specific obligation to shareholders, thereby creating a corresponding right that can be enforced through a claim.

Implications for Shareholders

For shareholders, the Lagana decision confirms the need for timely action to enforce statutory rights under the OBCA. Delays in seeking compliance with statutory obligations may result in claims being statute-barred under the Limitations Act, 2002.

Ontario remains a jurisdiction that allows for private enforcement of mortgages, where court proceedings are not necessary in every case. But for residential mortgages, private enforcement is limited to circumstances involving vacant properties, or where the borrowers or their tenants agree to leave voluntarily (this is almost never the case).

In most other cases, the mortgage lender will need a writ of possession, which directs the local enforcement office to (legally) evict the individuals in possession of the property. Since the only way to obtain such a writ is with a judgment for possession in hand, mortgage lenders almost always have to engage with the Ontario civil court system – which can sometimes seem like the modern-day equivalent of the Courts of Chancery described by Charles Dickens in Bleak House, with cases that span human lifetimes. Delays in agreeing to timetables. Delays in getting to court to impose timetables. Delays in scheduling cross-examinations. Limited court availability for hearings. All can add months and months to the process.

In the best case scenario, a statement of claim is issued and served on the borrower, the borrower accepts that they cannot save the property and does not defend, and default judgment for possession is obtained in little over a month. More commonly, the borrower defends the claim, knowing that that relatively inexpensive step virtually guarantees 3-12 months of time (or more, depending on which court is involved) before the lender has its judgment. This is true even when the defence has no merit at all.

The fastest route for a lender once a claim to enforce a mortgage is defended is to bring a motion for summary judgment. Summary judgment is available when the court agrees there are no issues that require a full trial to resolve. When a defence is filed simply to buy time, summary judgment is likely appropriate. However, getting such a motion scheduled takes time, and usually only moves at a reasonable pace if the lawyer for the borrower co-operates in scheduling matters, which is often the opposite of what their client is instructing them to do.

From recent experience, the following steps can help overcome delay tactics:

1. Serve a complete motion record for summary judgment as soon as possible after the statement of defence is received.
2. Insist on a reasonable timetable, to be endorsed by court order. If the opposing lawyer is unresponsive, schedule a case conference, civil practice court attendance, or whatever other court appearance the local court practice direction provides for, to ask the court to impose a timetable on the parties.
3. Stick to the timetable. Even if the other side ignores deadlines, the only way to convince a court that delay should not be condoned is by meeting every deadline required of the moving party (the mortgage lender).
4. Obtain the earliest motion date available, but do not underestimate how much time will be required to argue the summary judgment motion. Judges will adjourn cases where the lawyer has tried to squeeze a long motion into a short motion time slot because short motion dates were available earlier.
5. Oppose adjournment requests except for truly valid reasons. It is not rude or in bad faith to ask for proof of whatever excuse has been put forward by the borrower to seek an adjournment.
6. Be ready to argue the motion when the hearing date arrives.

Even following all these steps, getting a judgment for possession often ends up taking well over six months. While mortgage enforcement is intended to be efficient, the civil court system’s (noble) aim of providing procedural rights to ensure fairness to all means that a certain amount of delay is unavoidable. Minimizing that court-related delay is one of the most important tasks of a lawyer acting for mortgage lenders.

Nature of the Dispute

The dispute in Project Freeway arose from a share purchase agreement (the “SPA”) between Project Freeway Inc. (“PFI”) and ABC Technologies Inc (“ABC Tech”). The SPA included an earn-out clause, which entitled PFI to receive additional payments based on the financial performance of the acquired business over a specified period. Importantly, the SPA stated that the full earn-out would become immediately payable if ABC Tech “directly or indirectly, sells, transfers or licenses a material portion of the assets of the Business of the Target Companies in one or a series of transactions to any Person other than an Affiliate of the Purachser” without the vendor, PFI’s, consent.

After the transaction closed, ABC Tech entered into SLB transactions with arm’s-length parties, selling the real estate of the acquired companies to third parties and leasing it back. ABC Tech also factored receivables, selling customer accounts to a bank. PFI argued that these actions triggered the earn-out clause, claiming they constituted a sale of a material portion of the acquired business’s assets.

“Material Portion of the Assets”

Justice Steele of the Superior Court of Justice’s Commercial List was tasked with determining whether the SLB and factoring transactions triggered the earn-out clause. The Court’s analysis focused on the interpretation of the term “material portion of the assets” within the SPA. Notably, the SPA explicitly allowed ABC Tech to engage in mergers, amalgamations or other internal reorganizations without triggering the earn-out clause.

The Court emphasized the importance of understanding the contractual language in the context and the parties’ intentions at the time they entered agreement. Justice Steele noted that the SLB transactions and factoring arrangements were typical financing steps that did not impact the acquired business’s operations or its ability to meet the earn-out targets. It also seemed important to Justice Steele that PFI knew ABC Tech intended to enter the SLB transactions before the SPA closed.

Additionally, the Court found that the SLB transactions and factoring arrangements did not affect the “contribution margin” that determined PFI’s entitlement to the earn-out. The business continued to operate as before, with no change in its operational capacity.

Thus, the Court held that a “material” sale in the context of the relevant SPA provision should be interpreted as material to the earn-out, not merely in terms of size or value. Justice Steele reasoned that this aligned with the parties’ intention to allow ABC Tech operational freedom while ensuring the earn-out targets were not compromised.

Not Always Straightforward

Project Freeway reminds us that the implications of contractual provisions are not always captured by a superficial plain reading. The intentions of the parties can be inferred from the commercial context, determined objectively, and the contract as a whole. As a result, a sale is not always a sale in the eyes of the law. What at first might appear to be a straightforward sale instead could be a financial maneuver that does not alter the fundamental nature of the business.

With an aging population, it has become increasingly common for people to put continuing powers of attorney (POAs) in place to ensure their affairs are managed by trusted ones if they lose capacity before death. It’s a smart – and often necessary – step. But not without risk of abuse.

What’s also on the rise are legal disputes on the validity of a POA. Did the “grantor”, the person who signed the POA, have capacity to appoint such attorney(s) in the first place? When did conditions like dementia or Alzheimer’s disease begin to impair the grantor’s capacity? The evidentiary challenges around these issues are often compounded by the fact that a POA might only have surfaced years after it was executed by the grantor.

This article discusses a specific type of POA, the Continuing Powers of Attorney for Property (“CPOAPs”), to illustrate some of the challenging legal issues on validity. CPOAPs are self-evidently prone to property and family disputes. We highlight three major points for the reader to think through when challenging or defending the validity of a CPOAP.¹

1. Does the CPOAP satisfy the Substitute Decisions Act criteria for being valid?

First things first. To establish the validity of a CPOAP, the document itself must either state expressly that it’s a “continuing power of attorney” or in effect that the authority may be exercised during the grantor’s incapacity to manage property.² This requirement underscores the conceptual difference between a CPOAP on the one hand, and a general POA which does not purport to survive the grantor’s incapacity on the other.³ The distinction is critical: unlike a CPOAP, under a general POA, the attorney may manage the grantor’s properties while the grantor has capacity, but not after capacity is lost.

To qualify as a CPOAP, other formal requirements include the following:

– The CPOAP must be executed in the presence of two witnesses;⁴

– Each of the witnesses must sign as witness;

– Several groups of people are prohibited from being a witness.⁵

2. What if the grantor refuses to undergo a capacity assessment?

What do you do if the grantor’s capacity at the time of signing the CPOAP is in issue, but the grantor refuses to undergo any capacity assessment: “My body, my temple”?

The court has the discretion to order a person to be assessed to determine the person’s capacity where there are reasonable grounds to believe that the person is incapable.⁶ In exercising this discretion, the courts will consider a list of factors:⁷

– the nature and circumstances of the proceedings in which the issue is raised;

– the nature and quality of the evidence as to the person’s capacity and vulnerability to exploitation;

– if there has been a previous assessment, the qualifications of the assessor, the comprehensiveness of the report and the conclusions reached, whether there are flaws in the previous report, evidence of bias or lack of objectivity, a failure to consider relevant evidence, the consideration of irrelevant evidence and the application of the proper criteria;

– whether the assessment will be necessary in order to decide the issue before the court;

– whether any harm will be done if an assessment does not take place;

– whether there is any urgency to the assessment; and

– the wishes of the person sought to be examined, taking into account his or her capacity.

The court’s overriding objective is “to balance the affected party’s fundamental rights against the court’s duty to protect the vulnerable.”⁸ In other words, while the grantor’s wishes will be taken into account, they are not necessarily determinative of the issue.

3. What other evidence or considerations may help in a CPOAP validity dispute?

Lastly, it’s tempting to assume a medical capacity report is all you need. Don’t make that assumption. It’s entirely possible that there would be insufficient medical records or cognitive test results that can pinpoint when the grantor developed the disease that might have affected the grantor’s capacity.

Additional evidence, including witness attestations regarding the grantor’s capacity (e.g., ability to manage affairs) or incapacity (e.g., forgetfulness or other signs of impairment) at a particular point in time could prove invaluable in assisting the court to decide the issue of capacity. They bridge evidentiary gaps in the medical evidence. In one case, the court looked at financial statements indicating the grantor’s irrational financial decisions.⁹ Objective documentary evidence can carry added weight, often tilting the balance in CPOAP-validity disputes.

Other questions, such as whether the power of attorney was signed under “undue influence” of another person, can be relevant. Undue influence is a distinct but related topic that goes beyond the scope of this article. For present purposes, undue influence considerations range from simpler questions such as whether a person was asked to leave the room during the grantor’s signing, to complex issues like the extent of the grantor’s emotional and physical dependence on the individual that may unduly influence the grantor.¹⁰ Naturally, these considerations are intertwined with capacity disputes in will-and-estate litigation.

Disclaimer: The article is for informational purposes only and should not be used as a substitute for competent legal advice from a licensed professional in your region.