Brendan Hardick

The appellant appealed a summary judgment dismissing his legal malpractice action as statute-barred under the Limitations Act, 2002.

The appellant alleged that the respondent lawyers provided erroneous advice regarding the enforceability of a binding arbitration agreement under North Carolina law in connection with an agreement of purchase and sale.

The appellant commenced his action on October 4, 2013, but had written a notice of pending legal malpractice action on November 23, 2009.

The Court of Appeal upheld the summary judgment, finding that the appellant discovered his claim by November 23, 2009, and his delay in commencing the action was a tactical choice to await the outcome of related arbitration proceedings, not a justified reason for extending the limitation period.

The defendants moved for summary judgment, arguing the plaintiff's professional negligence action was statute-barred by the two-year limitation period under the Limitations Act, 2002.

The plaintiff alleged negligence regarding legal advice on an arbitration clause.

The court found the plaintiff discovered the claim by November 23, 2009, based on a letter threatening legal malpractice action and attempts to amend pleadings.

The action, commenced October 4, 2013, was therefore dismissed as statute-barred.

Applicants sought a declaration that their insurer owed a duty to defend and indemnify them under a Directors and Officers liability policy in relation to an action by a contractor alleging breach of contract, unjust enrichment, and quantum meruit for unpaid construction work.

The court applied established duty-to-defend principles requiring a broad interpretation of coverage and examination of the pleadings to determine whether a potentially covered wrongful act was alleged.

It held that the essence of the underlying action was a collection claim for unpaid invoices and did not constitute a “wrongful act” within the meaning of the policy.

The court further held that the unjust enrichment and quantum meruit claims were derivative of the breach of contract claim and therefore caught by the contractual exclusion.

The application for declaratory relief was dismissed.

The counter-applicant brought a motion to dismiss the counter-application against certain respondents, join Ontario as a respondent, consolidate the application and counter-application, and convert the consolidated applications to an action.

The first three requests were granted on consent.

The request to convert the application to an action was contested.

The court dismissed this request, finding that the facts regarding the dedication of the disputed road as a public highway were clear and uncomplicated, and credibility was not in issue.