Canadian Lawyer

www.lawtimesnews.com 31 !" #$ % & '()) #* ! * + ,- !. /)-.0 12+1(#! - 3 4 5&.678982:7: ! ;$ ! ! 7<373<= ! $ ! Equitable doctrine back before Ontario court after more than a century The doctrine of unconscionable procurement was used successfully in a recent case AFTER MORE than a century, an equi- table doctrine has made a reappearance in an Ontario court — and it was used successfully. The doctrine of unconscionable procure- ment was argued, for the first time in 106 years, in a recent case before the Ontario Superior Court. "I've been doing this a long time, but I've never seen that doctrine used before. In fact, I'd never heard of it before," says Kimberly Whaley of Whaley Estate Litigation Partners. "I wanted to analyze it further because I think it could be used as an equitable doctrine in some of the elder abuse files that we're seeing, including perhaps predatory marriages." The doctrine is used to set aside gifts and other inter vivos wealth transfers where the maker did not understand what they were doing, she explains. It is predicated on the idea that it is uncon- scionable to allow a significant gift or other inter vivos wealth transfer to stand where the recipient was instrumental in causing it to occur and the maker did not truly appreciate what they were doing. The doctrine can also be referred to as the rule against large dona- tions without proper understanding. To trigger the doctrine, two standards must be met — that there was a significant bene- fit obtained by one person from another, and that the receiver had an "active involvement" in procuring or arranging the transfer. It doesn't look at proof of incapacity or undue influence, two of the more common chal- lenges in these cases. In Gefen v. Gaertner, which had more than 10 actions and more than 60 pre-trial motions, the court had to determine whether an elderly mother intended to bestow signifi- cant benefits — approximately $25.26 million since 2011, almost half of her assets — on one of her three sons and his immediate family and whether she fully appreciated the effect, nature and consequence of what she had

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