Alexandra Lev-Farrell

The defendants, comprising law firms and solicitors, brought two summary judgment motions seeking to dismiss professional negligence claims brought against them by the plaintiffs.

The plaintiffs alleged negligence for failing to advise them of their rescission rights under the Arthur Wishart Act (Franchise Disclosure) 2000.

The court dismissed both motions, finding that there were genuine issues requiring a trial regarding the scope of the retainers, the duty of care owed by the defendants, and causation.

The court emphasized the need for a trial to assess witness credibility and the necessity of expert evidence in professional negligence claims, and declined to grant partial summary judgment due to the interconnectedness and complexity of the claims.

The plaintiffs, self-represented litigants, brought a motion to remove the defendants' counsel, R. Leigh Youd and his firm, BYLD, alleging breach of privilege, that Mr. Youd was a material witness, and a conflict of interest due to an alleged "phantom client" relationship.

The court dismissed the motion, finding no waiver of privilege, no basis for Mr. Youd to be a material witness, and no solicitor-client relationship with the plaintiffs.

The court emphasized that removal of counsel is a discretionary decision made only in the clearest of cases, and that the plaintiffs' arguments relied on speculation and misapprehensions of law and fact.

Costs were awarded to the defendants.

The plaintiff landlord brought a motion for summary judgment against a commercial tenant and its indemnifiers for damages arising from a breached lease.

The tenant failed to complete fixturing or pay rent, prompting the landlord to terminate the lease.

One indemnifier opposed the motion, arguing lack of consideration, defective notice, non est factum, and lack of independent legal advice.

The court applied the summary judgment framework and found no genuine issues requiring a trial, holding that the indemnifier received consideration and the landlord's notice of termination properly preserved its right to claim future damages.

Partial summary judgment was granted for arrears and future losses up to a specified date, with costs awarded to the plaintiff.

The defendants moved to dismiss the action for delay and for failure to comply with the Rules of Civil Procedure after the plaintiffs failed to retain counsel for the corporate plaintiff and did not move to restore the action to the trial list after it was struck.

The court reviewed the chronology of the proceeding and found the plaintiffs had taken no steps to advance the litigation since 2013 and had failed to comply with earlier court orders.

Although the record demonstrated significant delay and procedural non‑compliance, the court exercised discretion to permit the plaintiffs a final opportunity to retain counsel.

The motion to dismiss was adjourned sine die on strict conditions, including a requirement to retain counsel within 60 days and payment of partial costs to the defendants.

The applicant landlord sought a declaration that a commercial tenant was required to pay its proportionate share of the cost of rehabilitating a shopping centre parking lot as additional rent under a lease provision requiring tenants to pay common area maintenance costs for repairs and maintenance.

The dispute turned on whether the parking lot rehabilitation constituted a repair or a capital expenditure under “accepted accounting practice.” After considering expert engineering and accounting evidence and principles drawn from GAAP and relevant case law, the court concluded that the work significantly extended the life of the parking lot and reduced operating costs, thereby enhancing its service potential.

The court held that the rehabilitation constituted a capital expenditure rather than a repair within the meaning of the lease.

Accordingly, the tenant was not responsible for the cost and was entitled to set-off amounts already paid.