Atoosa Mahdavian

The plaintiff sought clarification on a request for costs against his former counsel under Rule 57.07(1) of the Rules of Civil Procedure.

The court held that Rule 57.07(1) applies only to a 'lawyer for a party' and not to a former lawyer whose retainer had ended.

Furthermore, the court found insufficient evidence to conduct the required holistic examination of the former counsel's conduct.

The request for costs against the former lawyer was dismissed.

On competing motions in a property and trust dispute arising from a commercial and residential real estate purchase, the court addressed service, pleading amendments, and the continued registration of a certificate of pending litigation.

The court declined to strike an impugned affidavit of service, but validated service of the amended statement of claim on one defendant as of the date she clearly had notice, with leave to plead a limitation defence.

Extensive amendments were granted in part where they arose from the same core factual nexus, but inflammatory and immaterial allegations relating to criminal charges and certain improper claims were disallowed.

The request to discharge the certificate of pending litigation was refused because the action had been prosecuted with reasonable diligence despite counsel changes and procedural irregularities.

Each party was ordered to bear his own costs given divided success.

The moving parties sought an order requiring the responding party, a franchisee corporation, to post security for costs in relation to a counterclaim and third party proceedings arising from a franchise dispute.

The court considered Rule 56.01 of the Rules of Civil Procedure and whether the circumstances justified ordering security for costs against the counterclaim plaintiff.

The court held that the third parties were not entitled to security for costs because none of the recognized exceptions permitting recovery of third party costs from a plaintiff applied.

However, the defendant by counterclaim established that the responding party had previously pursued substantially identical relief in earlier proceedings and had failed to satisfy outstanding costs orders exceeding $40,000.

The court exercised its discretion to order security for costs in favour of the defendant by counterclaim.

Homeowners brought a motion under s. 47 of the Construction Lien Act and Rule 20 of the Rules of Civil Procedure seeking to discharge a construction lien and certificate of action and to dismiss the contractor’s action.

The court held that conflicting affidavit evidence regarding the amount and nature of work performed created genuine issues requiring a trial, preventing summary judgment dismissing the action.

However, the evidence demonstrated that the lien amount of $250,000 was grossly inflated relative to the limited work allegedly performed.

Exercising its discretion under the Construction Lien Act, the court ordered that the lien and certificate of action be vacated upon payment into court of a reduced amount representing a reasonable security for the claim.

Two competing procedural motions arose in litigation concerning control of a corporate bank account following the separation of spouses involved in a family business.

The respondents sought leave to examine a bank employee whose interactions with the applicant were central to allegations about improper changes to corporate signing authority that resulted in the freezing of a corporate account.

The court held that the evidence was relevant and that any delay in seeking the examination resulted from prior counsel’s error, which should not prejudice the parties.

Leave was therefore granted to examine the bank employee.

The applicant’s motion to examine opposing counsel about the authenticity and delivery of a corporate requisition was found premature due to potential solicitor‑client privilege concerns and the availability of alternative avenues for obtaining the information.

The defendants brought a motion under Rule 39.03 of the Rules of Civil Procedure to compel the plaintiffs’ former lawyers to attend examinations as witnesses in aid of a motion to dismiss a 20‑year‑old action for delay.

The plaintiffs had filed affidavits attributing the delay in prosecuting the claim to the inaction and failures of their previous counsel.

The court held that the former lawyers were likely to possess relevant evidence concerning the causes of the delay and whether it was intentional or inexcusable.

By blaming their lawyers and placing the communications and conduct of counsel at issue, the plaintiffs were found to have waived solicitor‑client privilege to the extent necessary to permit examination.

The court ordered four former lawyers to attend examinations under Rule 39.03, quashed the summons against one lawyer, and directed that the examinations occur after cross‑examinations on the plaintiffs’ affidavits.

The appellant franchisee appealed the dismissal of its action against the respondent franchisor for breach of the statutory duty of fair dealing under the Arthur Wishart Act.

The appellant argued that the franchisor failed to provide sufficient disclosure regarding a right of first refusal for a new restaurant location, specifically concerning the final lease terms and the size of the exclusive territory.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the franchisor acted in good faith and in a commercially reasonable manner, and that the appellant's decision to pass on the location was an informed one based on its own financial position and lack of confidence in the landlord.

The applicants sought a determination of the shareholders of 7538715 Canada Ltd. and whether the respondent Mohammad Petgar was an authorized director.

The applicants claimed they owned 100% of the shares and provided all the investment money.

The respondent claimed he and his estranged wife, the primary applicant, each owned 50% of the shares.

The court reviewed documentary evidence, including a shareholders agreement and bank guarantees, and found that the respondent and his estranged wife were each 50% shareholders.

The court also found that the respondent was an authorized director of the company.

In a dispute over the share ownership of a corporation holding a 25% interest in a real estate development entity, the responding party sought production of opposing counsel’s file relating to pre-litigation letters that described the ownership structure.

The requesting party argued that the responding party waived solicitor‑client privilege by later asserting that statements in those letters were a mistake.

The court held that waiver did not arise because the impugned statements were made in correspondence prior to the commencement of the application and did not represent a withdrawal of a position taken in pleadings.

As a result, the responding party was using privilege as a shield rather than a sword, and solicitor‑client privilege remained intact.

Following the dismissal of the plaintiff's action, the successful defendants sought costs on a substantial indemnity basis.

The court found that the plaintiff's conduct was not reprehensible and awarded costs on a partial indemnity basis.

The court reviewed the defendants' bills of costs, making reductions for excessive trial preparation time and for the defendants' failure to properly produce relevant documents before trial, which had necessitated a two-day adjournment.

Total costs of $784,276.99 were awarded to the defendants.

The appellant appealed an order striking out its Statement of Defence and Counterclaim.

The Court of Appeal allowed the appeal, finding that the draconian step of striking pleadings was not justified.

The appellant's former solicitors were removed from the record shortly before a scheduled trial, and the appellant had made efforts to retain new counsel.

The Court held that less severe measures, such as granting an extension of time, should have been considered.

The appellant appealed a trial judge's decision regarding the existence of an exclusive contract and the reasonable notice period for termination.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusions that no exclusive contract existed and that 90 days was a reasonable notice period to terminate the contract concerning 22 machines.