Alfred J. Esterbauer

The plaintiffs, Joseph and Anna Iacolucci, brought a motion to set aside a Registrar's dismissal order dated November 20, 2013, and to set a fresh timetable for their action against TD Waterhouse Canada Inc. and Carrie Anderson.

The action, commenced in 2007, alleged breach of contract, negligence, negligent misrepresentation, and breach of fiduciary duty related to investment losses.

The court dismissed the motion, finding that the plaintiffs failed to provide an adequate explanation for the inordinate delay of over six years, that the failure to meet the set-down deadline was not due to inadvertence, that the motion to set aside the dismissal was not brought promptly, and that the defendants suffered actual prejudice due to lost documents and faded memories.

The court emphasized the need to enforce timelines and the unfairness to the defendants in resurrecting the action after such significant delay and abandonment.

The plaintiff sued his former solicitors for negligence.

The defendants brought a motion to dismiss the action due to the plaintiff's considerable delays and non-compliance with court orders, including a consent order.

The plaintiff argued that dismissal was a draconian remedy and that non-compliance resulted from solicitor inadvertence and a breakdown in the solicitor-client relationship.

The court dismissed the defendants' motion, finding that dismissal was not yet justified given the preference for deciding cases on their merits and the plaintiff's substantial, albeit late, compliance.

However, the court imposed strict terms and a timetable for the plaintiff to advance the action, emphasizing it was a "last chance."

The plaintiffs sought an interim order for costs against the LawPro defendants to fund their action for malicious prosecution, conspiracy, and negligent investigation arising from a prior arson prosecution.

The court dismissed the motion, finding that the plaintiffs failed to establish impecuniosity with robust particularity, as they had substantial real estate equity and failed to account for over $1.2 million previously paid to them by LawPro.

Furthermore, the court found no special circumstances warranting an advance costs order, as the case was a private dispute without a broader public interest.

The applicant sought to rectify a deferred payment formula in a limited partnership agreement related to the sale of its business to the respondent.

The applicant argued that the formula should match the one contained in a prior non-binding letter of intent, alleging unilateral mistake.

The court dismissed the application, finding that the applicant and its counsel had the opportunity to review the draft agreement, which clearly contained a different formula, and failed to establish that the respondent knew or ought to have known of the applicant's mistake and took advantage of it.

The plaintiffs brought motions to set aside registrar's orders dismissing their construction dispute actions for delay.

The delay was largely unexplained and attributed to the plaintiffs' former counsel, who suffered from health issues and subsequently passed away.

Although the plaintiffs failed to meet three of the four Reid factors, the court found they successfully rebutted the presumption of prejudice.

The defendants' conduct, including their willingness to schedule discoveries after the dismissal, indicated no actual prejudice.

The motions were granted and the dismissal orders were set aside.

The plaintiff moved under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s administrative dismissal of the action for delay.

The court considered the factors governing such relief, including explanation for the delay, inadvertence in missing the set‑down deadline, delay in bringing the motion, and prejudice to the defendant.

Although the motion to set aside was not brought promptly, the court accepted that the missed deadline resulted from inadvertence and that the plaintiff always intended to pursue the claim.

Discoveries and production were complete and the defendant failed to demonstrate prejudice affecting the ability to defend the action.

Balancing the factors contextually, the court concluded that it was just to set aside the dismissal and permit the action to proceed to trial.

The plaintiff moved to reinstate a professional negligence action that was administratively dismissed for delay in 2007.

The parties had previously agreed to hold the action in abeyance pending the outcome of related tax litigation, but a court order only extended the time for service by six months.

The Master found that the delay was adequately explained by the parties' understanding to adjourn the matter sine die, the missed deadline was due to inadvertence, and the defendants suffered no actual prejudice.

The motion to set aside the dismissal was granted.

The plaintiffs moved under Rule 48.11 of the Rules of Civil Procedure to restore an action to the trial list after it had been struck from the list for several years, while the defendants brought a cross‑motion to dismiss the action for delay.

Applying the conjunctive test articulated by the Court of Appeal in Nissar v. Toronto Transit Commission, the court held that the plaintiffs bore the burden of providing an acceptable explanation for the litigation delay and demonstrating that the defendants would suffer no non‑compensable prejudice if the action proceeded.

The plaintiffs argued that related litigation justified holding the matter in abeyance, but the court found no evidence that opposing counsel had been informed of such an intention and concluded the action had effectively been neglected for nearly four years.

Although the court found that the defendants had not established actual prejudice, the plaintiffs failed to satisfy the first branch of the Nissar test.

The motion to restore the action to the trial list was therefore dismissed.

A corporation sought leave under Rule 13.01 of the Rules of Civil Procedure to intervene in pending motions concerning enforcement and variation of a document production order involving a law firm and a related company.

The proposed intervenor asserted that certain documents in the law firm’s files were subject to solicitor-client privilege under a sole retainer and were outside the scope of the earlier consent production order.

The court held that the proposed intervenor had a direct interest in the subject matter of the dispute because the documents were claimed to be its property and potentially privileged.

Allowing intervention would not cause undue delay or prejudice.

The motion to intervene was granted and the existing sealing order was varied to permit access by the intervenor and its counsel.

The plaintiff brought an action alleging negligence against accountants and a lawyer arising from tax planning involving a family trust created to facilitate the sale of shares in a technology company.

The defendants moved for summary judgment, arguing the claims were barred by limitation periods, unsupported by expert evidence, or defeated by illegality relating to the alleged backdating of the trust.

The court held that the record revealed numerous disputed factual issues, including the scope of the defendants’ retainers, the timing and legality of the trust’s creation, and the plaintiff’s knowledge of potential tax problems.

Applying the full appreciation test from Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the evidentiary conflicts required the full forensic process of a trial.

Both summary judgment motions were dismissed with costs in the cause.