Alex R. Sharpe

The appellant estate appealed a motion judge's decision dismissing its motion to dismiss a solicitor's negligence action for delay.

The defendant solicitor had died unexpectedly during the litigation.

The appellant argued the loss of the solicitor's viva voce evidence caused actual prejudice.

The Divisional Court upheld the motion judge's finding that the documentary evidence was sufficient to ensure a fair trial and that the appellant failed to prove actual prejudice.

The respondent's cross-appeal regarding the motion judge's costs award was also dismissed.

The plaintiffs succeeded on their appeal to add a term confirming the applicability of the deemed undertaking under Rule 30.1.

They sought partial indemnity costs for the appeal and leave motion.

The court awarded the plaintiffs $13,202 in costs for the appeal.

Regarding the initial motion below, the court found that success was divided and set aside the previous costs order of $16,686.33, ordering no costs for the initial hearing.

The appellant charities in two related class actions appealed a case management judge's decision declining to continue a protective order over the identities of potential class members who opted out.

The appellants argued the judge failed to consider whether the deemed or implied undertaking rules applied to this information.

The Divisional Court allowed the appeal, holding that the deemed undertaking rule under Rule 30.1.01(3) of the Rules of Civil Procedure applies to the names and numbers of opt-outs disclosed by the plaintiffs' counsel to the defendants' counsel, as this information is relevant and discoverable.