Allan R. O’Brien

The plaintiff condominium corporation brought a motion to set aside a registrar's order dismissing its construction deficiency action for delay.

The action, which sought $5,000,000 in damages primarily related to elevator issues, was dismissed after the plaintiff inadvertently missed the set down deadline.

The court applied the test from H.B. Fuller Company v. Rogers, finding that the plaintiff adequately explained the delay, moved promptly to set aside the order, and demonstrated that the failure was inadvertent.

Crucially, the court found no significant prejudice to the defendants, as the case relied heavily on documentary evidence which had been preserved.

The motion was granted and the dismissal order was set aside.

The plaintiff municipality sought leave to amend its statement of claim to add its consulting engineer, WSP, as a defendant in an action concerning defective bridge rehabilitation work.

WSP opposed the motion, arguing the claim was statute-barred by the two-year limitation period.

The court applied the discoverability principle, finding that the plaintiff reasonably relied on WSP's professional advice that the defects were caused by poor workmanship rather than WSP's specified concrete mixture.

The limitation period did not begin to run until the plaintiff obtained independent expert reports revealing WSP's potential negligence.

The motion to add WSP as a defendant and extend the time to set the matter down for trial was granted.

This is an appeal from a Master's order requiring an extra-jurisdictional examination of a plaintiff and awarding costs.

The plaintiffs appealed the order for examination and the costs award.

The court upheld the Master's decision, finding that the Master applied the correct test for extra-jurisdictional examinations, provided sufficient reasons, and did not misapprehend the evidence.

The appeal regarding costs was dismissed because leave to appeal was not sought, with the possibility for the plaintiffs to bring a separate motion for leave.

Costs of the appeal were awarded to the defendants.

The Plaintiffs, having obtained partial summary judgment on liability, sought substantial indemnity costs.

The Defendants proposed a global award.

The court, applying Rule 57.01 of the Rules of Civil Procedure and principles from Boucher v. Public Accountants Council for the Province of Ontario, assessed the Plaintiffs' costs.

It found the Plaintiffs' claimed fees and disbursements excessive, particularly for time not directly related to the summary judgment motion and for preparing costs submissions.

The court also considered the "no-cost" offer to settle, finding it did not automatically trigger Rule 49 consequences but was a relevant factor.

The court fixed the Plaintiffs' costs at $160,889.76 in fees and $100,000 in disbursements, inclusive of taxes.

The plaintiffs brought a motion for partial summary judgment on the issue of the defendants' liability for professional negligence in failing to advise them of the 21-year deemed disposition rule under the Income Tax Act regarding a family trust.

The defendants admitted breach of the standard of care but disputed causation, arguing the third-party accountants were responsible, and brought a cross-motion to have causation and damages heard together with the third-party claim.

The court granted the plaintiffs' motion, finding no genuine issue for trial on liability as the 'but for' test for causation was met against the defendants.

The court dismissed the defendants' cross-motion, holding that the third-party action could proceed independently and should not delay the plaintiffs' main action.

The defendant WSP Canada Inc. brought a motion for leave to appeal to the Divisional Court from a decision compelling the production of an internal Risk Management Report (RMR).

WSP claimed common law privilege over the RMR, arguing that the motion judge erred in applying the dominant purpose test for litigation privilege and that his decision conflicted with other authorities.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on common law privilege principles and no good reason to doubt the correctness of the original decision.

The court affirmed that the RMR was not prepared for the dominant purpose of litigation and therefore was not protected by litigation privilege, correctly applying the Slavutych test.

The defendant, a retired tax lawyer suffering from a debilitating medical condition, brought a motion to be excused from oral examination for discovery and to proceed by written interrogatories instead.

The plaintiffs opposed the motion, arguing that oral discovery was necessary given the allegations of professional negligence, breach of fiduciary duty, and dishonesty.

The court dismissed the motion, finding that while the defendant's medical condition was serious, the evidence did not establish that oral discovery, if properly managed with accommodations such as short sessions and frequent breaks, would cause physical or psychological harm.

In a professional negligence action arising from accounting advice regarding eligibility for Canadian Controlled Private Corporation status, the defendant accountants moved for summary judgment dismissing the plaintiffs’ claim.

The defendant also brought a third party claim against the plaintiffs’ solicitors alleging negligent misrepresentation and seeking contribution and indemnity.

The court held that the accounting negligence claim involved complex factual disputes, credibility issues, and professional standards unsuitable for determination on summary judgment and therefore required a trial.

However, the court granted summary judgment dismissing the third party claim against the solicitors, finding no duty of care and no reasonable reliance by the accountants on the solicitors’ confirmations regarding a shareholders’ agreement.

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 moving party sought leave to appeal a motion judge’s refusal to grant summary judgment dismissing a professional negligence claim against a solicitor.

The claim alleged that the solicitor failed to advise the plaintiff regarding a limitation period for commencing an action against a disability insurer.

The court considered whether the absence of expert evidence required dismissal of the claim at the summary judgment stage.

It held that expert evidence is not invariably required when the moving party has also failed to file such evidence and the evidentiary record does not permit a full appreciation of the issues.

Leave to appeal was denied because the motion judge reasonably concluded that the factual record required further development at trial.

The defendants, a lawyer and her law firm retained by a union, brought a motion for summary judgment dismissing a negligence claim arising from the plaintiff’s lost opportunity to sue for long‑term disability benefits.

The moving parties argued that their retainer was limited to advising the union on accommodation and grievance matters and did not include pursuing litigation against the disability insurer before the limitation period expired.

The plaintiff argued that a solicitor may owe a duty of care even absent a formal solicitor‑client relationship where a relationship of proximity and reliance exists.

The court held that the evidentiary record did not permit a full appreciation of the factual circumstances surrounding the meetings and communications between the plaintiff and the lawyer.

As a result, whether a duty of care arose could not be determined without trial.