Aaron Hershtal

The defendants, a lawyer and his law firm, brought a summary judgment motion seeking the dismissal of a professional negligence action.

They argued the action was statute-barred, lacked expert evidence on negligence, and lacked evidence on damages.

The court dismissed the motion, finding genuine issues for trial regarding the existence and nature of the solicitor-client relationship, whether a duty of care was breached by failing to disclose environmental and archaeological reports, and the discoverability of the claim for limitation purposes.

The court also addressed the evidentiary burden on summary judgment motions, particularly concerning expert evidence in professional negligence cases, and reconciled conflicting Court of Appeal decisions.

The defendants appealed a Master's order that granted the plaintiff leave to file additional evidence and conduct further examinations under Rule 39.02(2) and 39.03, pending the defendants' motion for summary judgment.

The underlying action involved claims against a deceased's estate, requiring corroborating evidence under s. 13 of the Evidence Act.

The Master found that the need for corroboration became apparent after cross-examinations and applied a contextual approach, limiting the additional evidence and allowing the defendants to respond.

The Superior Court upheld the Master's decision, finding no error in principle or misapprehension of the test under *First Capital Realty Inc. v. Centrecorp Management Services Ltd*.

The court emphasized deference to the Master's expertise in discovery matters and dismissed the appeal, awarding costs to the plaintiff.

These supplementary reasons address costs for a motion where the plaintiff sought leave to file additional affidavit evidence and conduct examinations after cross-examinations on a pending summary judgment motion.

The plaintiff initially sought leave for 15 witnesses, reduced to 9, and then suggested 3.

The court granted leave for no more than three additional witnesses.

Given this divided success, where the plaintiff did not obtain the broad order initially requested, the court ordered no costs for the motion.

The appellant purchased land from the respondents with a vendor take-back mortgage.

The purchase agreement and mortgage provided that if the official plan was not amended to change the zoning designation to "Business Commercial" prior to June 17, 2018, the principal amount would be reduced by $600,000.

The mortgage also contained a standard charge term providing that if the lands were sold without the respondents' consent, all amounts owing plus a three-month interest bonus would immediately become due.

The appellant sold the property in February 2017 without consent and paid $600,000 into court, arguing the price reduction applied.

The application judge dismissed the application, and the Court of Appeal upheld the dismissal, finding that the plain language of the mortgage clearly stipulated the June 17, 2018 deadline and that the appellant's sale triggered the obligation to pay all monies owing including the interest bonus.

The appellant appealed a summary judgment dismissing his professional negligence claim against a tax lawyer.

The appellant had retained the tax lawyer to advise on tax implications of a matrimonial settlement involving the purchase of his ex-spouse's shares in a family corporation.

The tax lawyer provided advice on two approaches: a direct purchase (which would trigger significant personal tax liability) and a redemption approach (which would avoid the tax hit).

The appellant ultimately settled using the direct purchase approach with a negotiated "tax discount" rather than the recommended redemption approach.

The appellant subsequently incurred approximately $1.3 million in tax liability and sued for negligence.

The motion judge granted summary judgment dismissing the claim, finding the tax advice was correct.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate in these circumstances and that serious issues remained regarding the lawyer's professional obligations to ensure advice was communicated to and understood by the client.

The plaintiffs brought a cross-motion for leave to introduce a supplementary affidavit in response to the defendants' summary judgment motion.

The affidavit addressed two issues: a conversation regarding legal representation and the plaintiffs' financial losses, including an accounting opinion.

Applying Rule 39.02(2) and Rule 1.04 of the Rules of Civil Procedure, the court granted leave for both aspects of the supplementary affidavit, finding the evidence relevant and necessary for a just determination on the merits, particularly given the complexity and potential value of the case, and that the defendants were not surprised by the accounting opinion.

The defendant law firm, Perras Mongenais, brought a motion for partial summary judgment to dismiss the plaintiff's professional negligence claim against it.

The plaintiff alleged the firm provided negligent tax advice during his family law settlement negotiations.

The court found that the firm's advice was correct, clearly communicated, and strictly limited to the specific questions asked by the plaintiff's family lawyer.

The court engaged in a detailed analysis of the availability of partial summary judgment post-Hryniak, concluding that resolving the claim against this key party was proportionate and posed little risk of inconsistent findings.

The motion was granted and the action against Perras Mongenais was dismissed.

The plaintiff brought a motion for summary judgment to discharge a mortgage registered against his property, alleging that the defendant mortgagee never advanced the funds.

The plaintiff also claimed against the lawyer who provided him with independent legal advice, alleging negligence.

The court dismissed the plaintiff's motion for summary judgment regarding the mortgage discharge, finding that the conflicting evidence regarding the advance of funds required a trial.

The court granted the lawyer's motion for summary judgment, dismissing the claim against him on the basis that it was statute-barred under the Limitations Act, 2002, and alternatively, that the lawyer did not breach his duty of care.

The plaintiff purchaser moved for summary judgment seeking return of $1.2 million in deposits paid under an aborted real estate transaction, while the defendant vendor cross‑moved for summary judgment declaring its entitlement to retain the deposits.

The dispute centred on whether the vendor improperly refused to accept a proposed subordination and standstill agreement relating to secondary financing and thereby prevented closing.

The court held that the agreement of purchase and sale permitted secondary financing only if the secondary lender subordinated its rights to the vendor’s vendor‑take‑back mortgage and related security provisions, including an escrow deed provision and an escalator clause.

The purchaser’s proposed financing arrangements would have impaired those security rights and therefore did not comply with the contract.

The court concluded the purchaser failed to close and the vendor was entitled to retain the deposits.

The plaintiff brought a refusals motion seeking answers to numerous questions refused on examinations conducted in connection with a pending motion for particulars in a professional negligence and breach of contract action against former lawyers.

The plaintiff argued that the defendants’ affidavit asserting lack of knowledge regarding certain particulars waived solicitor-client privilege over the defendants’ files and related information.

The court held that any waiver of privilege was limited to the knowledge addressed in the affidavit at the time it was sworn and did not extend to the entirety of counsel’s files.

The requested questions and document production exceeded the scope of the limited waiver and intruded upon solicitor-client privilege.

The court dismissed the refusals motion and confirmed the propriety of the defendants’ redactions and document production.

The plaintiff brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to examine opposing litigation counsel under Rule 39.03 in connection with a forthcoming motion for particulars.

The motion arose after cross‑examination revealed that the affiant, a lawyer at the plaintiff’s firm, lacked personal knowledge of key factual assertions in her affidavit and had relied on information prepared by counsel.

Applying the factors articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd., the court held the proposed examination was relevant, arose from matters uncovered during cross‑examination, would not cause non‑compensable prejudice, and could not reasonably have been sought earlier.

The court further held that proportionality and a contextual approach supported allowing the examination where the relevant information was uniquely within counsel’s knowledge.

Leave to examine the lawyer was therefore granted, with costs reserved.