Andrew Rogerson

The Court of Appeal for Ontario dismissed Andrew Miracle’s appeal from a summary judgment awarding his former lawyer $2,858,500 in contingency fees and upholding a solicitor’s lien.

The dispute arose from a business conflict between Miracle and his son over “Smokin’ Joe’s,” resolved by arbitration.

The court found that Miracle’s acquisition of the business constituted a “recovery” under the contingency fee agreement, even though he did not receive a cash award.

The court also upheld the enforceability of the contingency fee agreement and the granting of a common law solicitor’s lien, finding no error in the motion judge’s exercise of discretion.

This decision addresses motions for leave to appeal a costs order issued by the Superior Court of Justice.

Robert Mark Roe, the appellant in the underlying appeal concerning a will challenge, sought leave to appeal the costs award.

Randall Scott Roe, a respondent, brought a cross-motion for leave to appeal the same costs order.

The Court of Appeal dismissed Randall Scott Roe's cross-motion for leave to appeal, finding no error in the application judge's discretionary costs award, which involved a holistic review of the litigation and parties' conduct.

Robert Mark Roe's motion for leave to appeal the costs order was dismissed as abandoned.

No costs were awarded on the motions for leave to appeal.

Robert Mark Roe appealed a lower court decision that upheld his mother's 2005 Will, which disinherited him.

He argued that his mother, Beverly Grace Roe, lacked testamentary capacity due to insane delusions and was unduly influenced by his brother, Rick.

The Court of Appeal affirmed the application judge's findings, concluding that Beverly's beliefs, though at times irrational, had a factual basis, and that she was not unduly influenced.

The court also confirmed that a testator only needs a general understanding of their assets for testamentary capacity.

The appeal was dismissed, and costs were awarded to the respondent Randall Scott Roe.

This is a costs decision following an unsuccessful three-week trial where Robert Mark Roe challenged his mother's will and inter vivos gifts.

The court dismissed both actions (Will Action and Gift Action).

The decision addresses the costs sought by Randall Scott Roe (an estate trustee and successful respondent) and Raymond Christopher Roe (another estate trustee).

The court fixed costs, ordering Mark Roe to pay Randall Scott Roe $330,000 in all-inclusive costs, the estate to cover $260,338.03 of Randall's litigation costs, and Randall to be personally responsible for the balance.

Raymond Christopher Roe was reimbursed $170,000 from the estate for his conciliatory approach.

The appellant appealed the removal of her notice of objection to a will's validity and a substantial indemnity costs award from the lower court.

The Court of Appeal found the appellant lacked standing to appeal the will's validity after withdrawing her objection and failing to provide supporting evidence.

However, the court found a palpable and overriding error in the application judge's costs award, as not all delays were solely attributable to the appellant.

The substantial indemnity costs were set aside and reduced to a partial indemnity amount.

The applicant challenged his mother's Will, which disinherited him, arguing she lacked testamentary capacity, suffered from insane delusions, and was unduly influenced by his brother.

The court found that while the Will was executed under suspicious circumstances, the respondents successfully proved the testator had testamentary capacity and was not operating under insane delusions.

The court held that the testator's reasons for disinheriting the applicant, though perhaps unreasonable or based on misunderstandings, were grounded in actual events and did not amount to insane delusions.

The applicant also failed to prove undue influence.

The application and related action were dismissed.

The moving defendants brought a motion on consent of all parties to transfer the action from St. Thomas to Toronto.

The action arose from a syndicated mortgage investment for a property in St. Thomas.

The court dismissed the motion, finding that none of the parties were located in Toronto and the only connection to Toronto was the location of counsel's offices.

The court held that the convenience of counsel is not a sufficient basis to transfer an action under Rule 13.1.02.

In a will challenge application, the parties brought cross-motions regarding the appointment of an Estate Trustee During Litigation (ETDL).

The applicants sought to appoint a professional trust company, while the respondent executor named in the impugned will sought to be appointed himself.

The court found that an ETDL was necessary and appointed the respondent executor, noting he had no beneficial interest in the estate, was neutral, and had already been managing the estate's assets.

The court dismissed the applicants' motion to appoint a limited partnership as ETDL, as it was not legally authorized to act in that capacity.

The court also granted directions for an accounting, production of medical records, and interim custody of certain chattels.

An application for leave to appeal a contempt finding was dismissed.

The contempt finding arose from the applicant's failure to attend an examination in aid of a foreign bankruptcy proceeding.

The Court of Appeal found that the proposed appeal did not raise issues of general importance to bankruptcy/insolvency practice or the administration of justice, lacked prima facie merit, and would unduly hinder the progress of the bankruptcy proceedings.

The issues raised included a refused recusal motion and the requirement of personal service for contempt proceedings.

This is a motion to quash an appeal brought by Andrew Henry Ting against two orders made in the bankruptcy proceedings of his father, James Henry Ting.

The orders included an enforcement of a Hong Kong letter of request for production and examination, and a subsequent contempt finding and penalty for non-compliance.

The appellant argued he had a right of appeal under s. 193(a) of the Bankruptcy and Insolvency Act (BIA) on the basis that the point at issue involved "future rights," specifically procedural fairness regarding a recusal request.

The Court of Appeal held that the orders were subject to BIA appeal routes and that issues of procedural fairness engage present, not future, rights.

Consequently, the appeal was quashed.

At a case conference, the court ordered the respondent to select three real estate brokers from a list proposed by independent counsel to obtain opinions of value for three properties subject to the application.

Following the valuations, the parties are to schedule a further case conference to determine next steps.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs of the appeal were awarded to the respondent on a partial indemnity scale in the amount of $2,500, inclusive of disbursements and HST.

The court issued supplementary reasons regarding a motion for disclosure of non-parties to whom the plaintiffs had disseminated unredacted litigation documents identifying minor defendants.

Despite the plaintiffs' failure to provide submissions and their stated intent to seek leave to appeal, the court proceeded to decide the outstanding issue.

The court found that the plaintiffs had breached an interim publication ban and engaged in a strategy to release minor defendants' identities to the press.

To ameliorate the harm and ensure the efficacy of the publication ban, the court ordered the plaintiffs to disclose under oath the names and contact details of all recipients of the identifying documents.

The court heard urgent motions to seal the file and ban publication of minor parties' identities in a bullying lawsuit.

The plaintiffs, Mother Doe and Jane Doe, initially sought broad protection but then released unredacted pleadings to the press, identifying the minor defendants.

The court found the plaintiffs' conduct reprehensible, rejecting their late-filed affidavits and expunging other materials.

Applying the Dagenais/Mentuck test, the court granted a publication ban protecting minors' names, school attendance dates, and family details, but allowed publication of ages, grade levels, and general details of alleged bullying and harm, as these were deemed not to identify the minors to the general public.

Substantial indemnity costs were awarded against the plaintiffs due to their abusive litigation tactics and breaches of court orders.

The appellant appealed the dismissal of her defamation action following a five-day trial.

The trial judge found that while the respondent's statements were defamatory and made in the context of an employment reference, they were protected by qualified privilege.

The trial judge also found that the appellant failed to prove malice, which would have defeated the privilege.

The Court of Appeal upheld the trial judge's decision on liability, finding no palpable and overriding error.

The court also addressed the appellant's challenge to costs, granting leave to appeal costs and reducing the award by $8,275.00 to exclude costs for voluntary mediation.

This is a costs endorsement arising from a motion for temporary access to a child during November and Christmas 2017.

The applicant father sought access to the child while a trial on custody and access was ongoing before another judge.

The respondent mother opposed the motion.

The court granted the applicant substantially all of the relief sought, permitting access during the requested periods with specified conditions.

The applicant subsequently sought full recovery of costs in the amount of $6,724.06.

The court reduced the costs award to $3,000.00 inclusive of all fees, disbursements, and HST, citing the failure of either party to serve an offer to settle and other relevant factors under the Family Law Rules.

At a trial management conference for a will challenge and related gift challenge, the court directed that the two proceedings be tried together to avoid duplicating evidence regarding the deceased's capacity.

The court ordered that evidence in chief be given primarily by affidavit, with limited oral examination, and set a timetable for the exchange of materials and a pre-trial conference.

The plaintiff sought summary judgment for the amount owing on a second mortgage.

The defendants argued the initial funds were gifts, not loans, and that the mortgage was obtained through fraudulent misrepresentation, duress, and was unconscionable, asserting they did not understand what they were signing despite receiving independent legal advice.

The court found the funds were loans, interest was implied by conduct, there was no misrepresentation, the defendants understood the documents and received adequate independent legal advice, and the mortgage was not unconscionable.

Summary judgment was granted to the plaintiff.

The plaintiff, Tracey Kanak, sued her former manager, Darryl Riggin, for defamation based on statements made during a job reference.

The plaintiff alleged malice, while the defendant pleaded qualified privilege and denied malice.

The court found the statements defamatory but concluded they were made on an occasion of qualified privilege.

The plaintiff failed to prove malice, as the defendant's testimony was credible and his statements were honest and not reckless.

The court also dismissed the plaintiff's alternative claims (breach of contract, intentional interference, infliction of emotional distress, invasion of privacy) as they were deemed "dressed up" pleadings of defamation, resting on the same impugned publications.

The action was dismissed in its entirety.

The plaintiff sued her former manager for defamation after he provided a negative employment reference to a prospective employer, resulting in a revoked job offer.

The court found that while the manager's statements were defamatory, they were made on an occasion of qualified privilege.

The plaintiff failed to prove that the manager was motivated by malice.

The court also dismissed the plaintiff's alternative tort claims as they were based on the same facts as the defamation claim.

The action was dismissed in its entirety.