Brett Hughes

The defendants brought a motion to dismiss or permanently stay the plaintiff's construction lien action, arguing that the plaintiff failed to immediately disclose a settlement and assignment agreement with the original lien claimant, contrary to the rule in Handley Estate.

The court found that the settlement and assignment did not fundamentally alter the adversarial orientation of the litigation, as the assignee and the defendants were already adverse in interest and the original claimant's role in providing evidence did not constitute a reversal of its pleaded position.

The motion was dismissed.

The moving defendants sought to dismiss or stay the action because the plaintiff failed to immediately disclose a settlement agreement reached with a co-defendant.

The court found that the settlement did not fundamentally change the litigation landscape, as it was a simple release without costs and did not involve the settling defendant switching sides or cooperating with the plaintiff.

Furthermore, the moving defendants had not asserted cross-claims against the settling defendant before the limitation period expired.

The motion was dismissed.

The appellants (plaintiffs in the underlying action) appealed a motion judge's decision to permanently stay their proceedings against the respondent (David Smith) due to their failure to immediately disclose partial settlement agreements with other co-defendants.

The Court of Appeal for Ontario affirmed that failure to immediately disclose settlement agreements that fundamentally alter the litigation landscape, by changing adversarial relationships into cooperative ones, constitutes an abuse of process.

The court reiterated that the sole remedy for such non-disclosure is an automatic stay of proceedings, regardless of whether prejudice is proven or if pleadings have been exchanged.

The appeal was dismissed, upholding the permanent stay.

The appellants sought a permanent stay of the plaintiffs' action, arguing that the plaintiffs' failure to immediately disclose a settlement agreement with a former defendant, Sean Antonello, fundamentally altered the litigation landscape.

The Court of Appeal for Ontario dismissed the appeal, affirming the motion judge's finding that the settlement did not significantly change the adversarial relationship between the parties.

The court held that the motion judge's determination was entitled to deference and that the drafting of affidavits by plaintiffs' counsel and a non-disparagement clause did not, by themselves, demonstrate an improper cooperative relationship.

This appeal addressed the scope of the "immediate disclosure" rule for litigation-altering agreements, specifically a Pierringer agreement, as established in *Handley Estate*.

The appellant (non-settling defendants) sought to stay the action, arguing the respondent (plaintiff) failed to immediately disclose the agreement's terms.

The Court of Appeal upheld the motion judge's decision, finding that the respondent's disclosure of the agreement's existence and essential terms, coupled with an immediate intent to seek court approval, satisfied the disclosure requirement.

The court clarified that not every term needs immediate disclosure, only those affecting the litigation landscape, and that the rationale for an abuse of process finding was not engaged where the court was informed and the disclosure was incremental within the context of seeking approval.

The defendant David Smith was successful on a motion for a permanent stay of the action against him due to the plaintiffs' failure to disclose settlement agreements.

The parties could not agree on costs.

The defendant sought full indemnity costs, arguing the plaintiffs' conduct was an abuse of process.

The court found the plaintiffs' conduct was misguided but not in bad faith, and awarded partial indemnity costs of $27,000 for the motion and $5,238.20 for the action.

The remaining defendants brought a motion to dismiss the plaintiffs' action for abuse of process, arguing that the plaintiffs failed to immediately disclose a settlement agreement with a co-defendant.

The court dismissed the motion, finding that the settling defendant did not switch sides or alter the adversarial orientation of the parties.

The settlement merely let a minor player out of the lawsuit in exchange for further documentary disclosure, which did not change the litigation landscape entirely.

The defendant moved to permanently stay the action as an abuse of process, arguing the plaintiffs failed to immediately disclose settlement and cooperation agreements reached with co-defendants.

The court found that the agreements fundamentally changed the litigation landscape from an adversarial to a cooperative relationship.

Applying the principles from Aecon and Handley Estate, the court held that the failure to immediately disclose these agreements constituted an abuse of process.

The action was permanently stayed against the moving defendant.

The plaintiff in a wrongful dismissal action brought a motion to compel answers to questions refused at an examination for discovery.

The refused questions sought production of an external law firm's unredacted fee accounts, investigation file, and unredacted board meeting minutes.

The defendants claimed solicitor-client privilege over the documents.

The court found that the law firm was retained to provide legal advice, making the investigation file privileged.

The court also held that the defendants did not waive privilege by producing the investigation report or by referring to the investigation in the plaintiff's termination letter.

The motion was dismissed.

Following a prior decision determining that Article 7.3 of the Collective Agreement applied to the remedy, the parties were unable to agree on the remedy's implementation.

The Arbitrator ordered the Employer to fix the grievors' wages at the FSA1 rate as of May 3, 2021, and set a timeline for the Employer to calculate retroactive payments starting from June 4, 2018, share the calculations with the Union, and finalize the amounts.

Following a finding that the Employer violated the collective agreement by failing to post and fill vacancies, the parties sought direction on the appropriate remedial framework.

The Union argued that the transfer of the grievors' duties to a lower classification constituted a layoff under Article 20.

The Employer argued that the pay administration provisions of Article 7.3 applied.

The Arbitrator held that Article 7.3 applied, as the work was not eliminated but rather reassessed and reclassified, and directed the parties to negotiate a remedy on that basis.

The plaintiff, a shareholder of a corporation that previously lost a mortgage enforcement action, brought a new action against the mortgagee and the mortgagee's lawyers alleging fraud, negligence, and breach of contract.

The defendants moved to strike the claim.

The court granted the motions, finding that the statement of claim disclosed no reasonable cause of action, as the plaintiff had no privity of contract, the lawyers owed no duty of care to a litigation adversary, and the claims were barred by the rule in Foss v. Harbottle.

The court also found the action to be an abuse of process and frivolous and vexatious, as it attempted to re-litigate issues already decided in the prior mortgage action.

The Union filed grievances on behalf of three fixed-term Operations Officers at the Provincial Emergency Operations Centre, alleging the Employer failed to post and fill permanent vacancies, failed to convert them to regular service, and failed to provide attendance credits.

The Arbitrator found that the Employer violated the collective agreement by failing to post permanent vacancies despite a continuing need for full-time work at the duty desk.

The Arbitrator also found the Employer improperly ceased issuing attendance credits.

However, the conversion grievance was dismissed because the collective agreement required a minimum number of 'straight-time' hours, and the grievors' overtime hours could not be included to meet the threshold.

The Union filed grievances alleging the Employer failed to provide attendance credits and failed to convert fixed-term positions to regular full-time positions.

At a hearing for preliminary matters, the parties reached an agreement on procedural steps.

The Arbitrator ordered the Employer to produce requested documentation, the Union to provide will-say statements, and established the relevant time frame for the grievances as going back to May 14, 2016.

The matter was scheduled to continue on subsequent dates.

The defendant sought partial indemnity costs of $80,111.33 following the dismissal of the plaintiff's professional negligence action.

The self-represented plaintiff objected to the lack of detail and alleged duplication of time by the defendant's counsel.

The court found the time spent generally reasonable but made a modest reduction of $5,000 in fees due to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $74,461.33, noting the plaintiff's $3 million claim was entirely dismissed, the action involved serious allegations against the defendant's professional reputation, and the plaintiff's conduct lengthened the proceeding.

The plaintiff, Themistocles Kyriakopoulos, sued his former criminal appeal lawyer, Gregory Lafontaine, for professional negligence, claiming $3 million in damages.

The plaintiff alleged that the defendant's handling of his criminal appeal fell below the standard of care, leading to the upholding of his conviction for drug trafficking.

The court dismissed the action, primarily finding it statute-barred under the Limitations Act, 2002, as the plaintiff knew or ought to have known of the alleged negligence more than two years before commencing the action.

Additionally, the court found that the plaintiff failed to establish solicitor's negligence without expert evidence and did not prove causation or damages.

The Employer brought a motion to strike several paragraphs from the Union's will-say statement in a grievance arbitration concerning harassment and failure to accommodate.

The impugned paragraphs contained allegations that had been the subject of earlier grievances dismissed by another arbitrator.

The Union argued the earlier decision was not on the merits and that the new grievances included a failure to accommodate claim.

The Arbitrator held that the prior decision was a final determination on the merits regarding those specific harassment allegations.

Applying the doctrine of res judicata, the Arbitrator granted the Employer's motion and struck the paragraphs from the will-say statement to prevent relitigation of previously decided matters.

The applicant, Brian Hamm, sought an order preventing the respondent, Gordon R. Baker, a lawyer, from disclosing the contents of a legal file to an intervenor in an ongoing litigation.

Hamm claimed that he and Baker were in a solicitor-client relationship, or a 'near client' relationship, and that Baker owed him a duty of confidentiality.

The court applied the Jeffers indicia to determine if a reasonable person would conclude a solicitor-client relationship existed.

The court found that Baker acted solely as corporate counsel for Northern Superior Industries Ltd. and for another investor, and that Hamm understood Baker was not representing his personal interests.

The application was dismissed.

The appellant appealed from a motion judge's order dismissing its motion for leave to amend the statement of claim to add a lawyer as a party defendant.

The motion judge found that the claim could not succeed on the merits and was statute-barred.

The Court of Appeal upheld the dismissal on the basis that the claim was statute-barred, as the appellant had discovered or should have discovered its potential claim by 2014, more than two years before the motion to amend was brought in October 2016.

In a personal injury action, the defendants sought further examination for discovery of the plaintiff and the plaintiffs sought immediate particulars of surveillance evidence.

The court held that the moving parties were entitled to continue the plaintiff's discovery, particularly to explore the effect of a subsequent motor vehicle accident and responsive productions.

Applying the recent appellate guidance on surveillance disclosure, the court required a sworn supplementary affidavit of documents disclosing the existence of the surveillance before the continued discovery, but held that the particulars of the surveillance need only be delivered forthwith after the plaintiff's discovery was completed.

Costs were fixed in favour of the moving parties.