Andrew Stein

The plaintiff appealed a decision upholding a Master's refusal to strike an affidavit.

During cross-examination on the affidavit, the witness's counsel adjourned the examination so the witness could consult with another lawyer.

When cross-examination resumed, the witness refused to answer questions about the consultation, claiming solicitor-client privilege.

The Divisional Court held that the Master erred by placing the onus on the plaintiff to prove interference with the witness's evidence without requiring the defendants to elect whether to waive privilege or withdraw the evidence.

The appeal was allowed, the decisions below set aside, and the matter remitted to the Master.

The appellant appealed a decision striking its pleading.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the pleading was beyond repair.

The appellant failed to plead that the respondents joined with the original tortfeasor to continue a false publication, and the respondents' alleged failure to stop the falsehood did not make them joint tortfeasors.

The moving parties sought leave to appeal an interlocutory order upholding a Master's refusal to strike an affidavit.

During cross-examination on the affidavit, the witness consulted with his lawyer, and opposing counsel subsequently claimed solicitor-client privilege over the communication.

The Master found no evidence of interference and dismissed the motion to strike.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of placing the onus on the examining party to prove interference when the communication was prima facie improper and shielded by privilege.

The court also found the issue of improper communication during cross-examination to be a matter of general public importance.

The appellant real estate developer appealed an order striking its defamation claim regarding an April 2001 condominium newsletter.

The motions judge struck the claim under Rule 21, finding the statement about inaccurate hydro meters was not capable of a defamatory meaning.

The Court of Appeal agreed, noting the words did not refer to the appellant or imply fault.

The appeal was dismissed with costs.

The appellant, who was wrongfully convicted of sexual assault and later had his conviction quashed after fresh DNA evidence was admitted, sued his trial lawyer for negligence.

The motion judge granted summary judgment dismissing the action, finding no 'egregious errors' and no evidence of causation.

The Court of Appeal allowed the appeal, holding that the proper standard of care for a lawyer conducting litigation is reasonableness, not 'egregious error'.

The Court also found that the 'but for' causation analysis raised a genuine issue for trial regarding whether the appellant would have been acquitted had the lawyer obtained the DNA evidence and properly conducted the trial.

The respondent's cross-appeal alleging abuse of process was dismissed.

The plaintiff brought a civil action against the Crown and police for malicious prosecution, abuse of process, conspiracy to injure, and intentional infliction of harm after his sexual assault conviction was overturned based on new DNA evidence.

The Crown successfully moved to strike the claims for abuse of process, conspiracy, and intentional infliction of harm on the basis that malicious prosecution is the only tort available against a prosecutor.

The Court of Appeal allowed the appeal, holding that the jurisprudence is not fully settled on whether the four elements of malicious prosecution must always be proven in every civil action against a prosecutor, and therefore it was inappropriate to strike the claims at this early stage.