Civil procedure — Summary judgment — Partial summary judgment
— Plaintiff and deceased naming each other as beneficiary of life insurance policy as part of business arrangement — Plaintiff bringing action
against deceased’s estate for declaration that he was entitled to proceeds
of deceased’s life insurance policy and for judgment on promissory
note executed by deceased — Motion judge granting plaintiff requested
declaration on motion for summary judgment and directing trial of
claim on promissory note — Motion judge not erring in granting partial summary judgment — Estate’s defences to claim on promissory
note not connected to grounds advanced for estate’s claim to proceeds
of insurance policy.
The plaintiff and the deceased had operated a jewellery store through their
company. As part of their business arrangement, each was named as the sole
beneficiary of the other’s life insurance policy. After the deceased’s death, the
plaintiff brought an action against his widow and his estate for a declaration
that he was entitled to the proceeds of the policy and for judgment on a promissory note that he alleged the deceased had executed. The defendants alleged that
the plaintiff and the deceased had entered into a buy-sell agreement under
which the proceeds from the proceeds from the insurance policy on one partner’s life would be used to purchase his shares in the company from his estate.
On a motion by the plaintiff for summary judgment, the motion judge granted
the requested declaration and directed a trial of the claim on the promissory
note. The defendants appealed.
Held, the appeal should be dismissed.
The evidence fully supported the motion judge’s finding that no buy-sell agreement existed. In the absence of a buy-sell agreement, there was no basis for the
defendants’ claim that the proceeds of the insurance policy were impressed with
a constructive trust in their favour.
The motion judge did not err in granting partial summary judgment. As the
defences advanced by the defendants to resist payment of the promissory note
were not connected to the grounds they advanced for their claim to the proceeds
of the insurance policy, the dangers of duplicative or inconsistent verdicts did
Cases referred to
Butera v. Chown, Cairns LLP (2017), 137 O.R. (3d) 561,  O.J. No. 5267,
2017 ONCA 783
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.03
APPEAL from the order of M.D. McArthur J.,  O.J. No.
3380, 2018 ONSC 3071 (S.C.J.).
David B. Williams and Rob Danter, for appellants.
John A. Nicholson, for respondent.