A. Rachlin

The defendants in a professional negligence action brought a motion to remove the plaintiff's current law firm as counsel of record.

The defendants argued that the law firm was in a conflict of interest because it had negotiated the settlement that the defendants alleged was improvident, and that a lawyer from the firm would be a necessary witness at trial.

The court dismissed the motion, finding that the current counsel of record had fulfilled his duty to disclose the conflict and refer the plaintiff for independent legal advice.

The court also held that it was premature to remove the firm based on the potential for a lawyer to be called as a witness, as discoveries had not yet occurred.

The dismissal was without prejudice to the defendants' right to renew the motion at a later stage.

In a multi-party motor vehicle accident action, the plaintiffs and two of the defendants entered into a Pierringer agreement.

The non-settling defendants brought a motion to compel production of the agreement, redacted only as to quantum.

The settling parties argued that only the 'essential terms' needed to be disclosed and that the agreement itself was protected by settlement privilege.

The court granted the motion, finding that the non-settling defendants faced potential procedural prejudice and that the need to protect them outweighed the public interest in maintaining settlement privilege over the non-financial terms of the agreement.

The plaintiff brought a professional negligence claim against his former lawyers, alleging they failed to secure appropriate funding for his catastrophic injuries.

The defendants pleaded that the plaintiff's subsequent lawyers recommended an improvident settlement, which was approved by the court.

The plaintiff moved to strike this defence, arguing issue estoppel applied to the court-approved settlement.

The defendants moved for disclosure of the privileged portions of the affidavit filed by the plaintiff's subsequent lawyers in support of the settlement.

The court dismissed the motion to strike, finding it would be unfair to prevent the defendants from scrutinizing the settlement.

The court also ordered disclosure of the privileged affidavit portions, finding an implied waiver of solicitor-client privilege because the plaintiff's claim put the rationale for the settlement in issue.

The plaintiff in a motor vehicle accident claim brought a motion to strike the defendants' jury notice due to the suspension of civil jury trials during the COVID-19 pandemic.

The court granted leave to bring the motion after the action was set down for trial, finding the pandemic constituted a substantial and unexpected change in circumstances.

Applying a five-factor analysis, the court concluded that the plaintiff would suffer prejudice from further delay, while the defendants failed to demonstrate specific prejudice.

The motion was granted, and the matter was directed to proceed as a judge-alone trial.

Following a civil jury trial dismissing a medical malpractice claim, the successful defendant sought partial indemnity costs exceeding $74,000.

The court assessed costs under Rule 57 of the Rules of Civil Procedure and the principles of fairness, reasonableness, and proportionality articulated by the Court of Appeal.

While the court accepted the reasonableness of senior counsel’s rates and most claimed hours, it reduced mediation costs and limited recovery for junior counsel’s trial preparation and attendance where the work resembled tasks that could have been performed by a law clerk.

The court emphasized that training junior counsel should not be funded by the opposing party through costs awards.

Total costs were fixed at $55,437.84 inclusive of fees, HST, and disbursements.

During a civil medical malpractice jury trial, the plaintiff sought to read portions of the defendant physician’s examination for discovery relating to pre-surgery discussions about the desired breast size following cosmetic surgery.

The defendant requested that additional portions of the discovery transcript also be read in pursuant to Rule 31.11(3) of the Rules of Civil Procedure, arguing they qualified or explained the plaintiff’s selected excerpts.

The court reviewed the purpose and scope of Rule 31.11(3) and the jurisprudence governing qualifying read-ins.

The court held that additional discovery evidence may be compelled where necessary to prevent the trier of fact from being misled by partial admissions or incomplete answers.

Because the additional answers addressed the same issue and could qualify the earlier discovery evidence, the court directed that both sets of questions and answers be read to the jury.