Cameron J. Wetmore

The Plaintiffs, a dentist and her professional corporation, brought a motion under Rule 21.01(1)(b) to strike paragraphs 6, 7, and 8 of the Statement of Defence and Counterclaim, which pleaded the defences of justification, qualified privilege, and fair comment in a defamation action.

Alternatively, they sought an order for particulars under Rule 25.10.

The court dismissed the motion, finding that the Plaintiffs were seeking evidence rather than material facts necessary for pleading.

The court emphasized that pleadings must contain sufficient information for the opposing party to know the case to meet, but not the evidence by which facts are proved.

The court also criticized the motion as unnecessary and a waste of judicial resources.

The plaintiff, Oasis Addiction Recovery Society, brought a motion for judgment to enforce an accepted offer to settle made by the defendants, Upper Canada 1ST Financial Group Inc. and Steve Erdelyi.

While both parties agreed to enforce the settlement, they disputed the interpretation of an indemnity clause, specifically the phrase "amounts paid to date." The plaintiff argued for a lower indemnity amount based on payments made directly to it, while the defendants contended for a higher amount including payments made to a third party (ICAN) before the loan transfer.

The court applied principles of contractual interpretation, considering the surrounding circumstances, and found in favour of the defendants' interpretation, obliging the plaintiff to provide an indemnity for the higher amount.

Following a prior proceeding, the court determined the appropriate costs payable by the unsuccessful party.

The successful defendants sought costs under s. 131 of the Courts of Justice Act and rule 57.01(1) of the Rules of Civil Procedure.

The court considered factors including indemnity, the reasonable expectations of the parties, and the fairness and reasonableness of the time and rates charged.

The court awarded the Drabble defendants the full amount claimed, finding the costs reasonable and reasonably anticipated, but reduced the costs sought by the Webb defendants after concluding their time spent was excessive in the circumstances.

The defendants moved for summary judgment dismissing a negligence and breach of contract claim against financial advisors on the basis that the action was statute‑barred under the Limitations Act, 2002.

The plaintiff alleged negligent investment advice relating to a 2010 flow‑through investment that generated significant capital gains tax.

The court applied the discoverability principle under ss. 4 and 5 of the Act and held that the plaintiff knew or ought reasonably to have known the material facts when he received and approved his 2010 income tax return in May 2011.

The plaintiff’s failure to carefully review the return did not postpone the commencement of the limitation period.

As the action was commenced more than two years later, the claim was barred.

The appellant appealed the dismissal of its third party claim against the estate of a deceased solicitor for professional negligence.

The motion judge had dismissed the claim as time-barred under s. 38(3) of the Trustee Act.

On appeal, the appellant argued that the limitation period should be tolled by the doctrines of fraudulent concealment or special circumstances.

The Court of Appeal upheld the motion judge's finding that the solicitor's conduct, while negligent, was not unconscionable, precluding the application of fraudulent concealment.

The Court also held that the doctrine of special circumstances does not permit a party to commence a third party claim after the limitation period has expired.

The appeal was dismissed.

The applicant, convicted of two counts of second degree murder and awaiting a further murder trial, sought a publication ban on evidence and credibility findings arising from an earlier application under s. 462.34 of the Criminal Code for access to seized funds to pay legal fees.

The court considered whether it had jurisdiction to grant a ban and applied the common law Dagenais/Mentuck test balancing freedom of expression against the accused’s right to a fair trial.

The court concluded that publication of the applicant’s admissions of criminal activity and the court’s adverse credibility findings posed a serious risk to the proper administration of justice in the upcoming jury trial.

A temporary ban was therefore necessary and proportionate.

The court ordered a time‑limited publication ban on the evidence, the fact of the application, and the earlier decision until completion of the pending murder trial.

The accused applied under s. 462.34(1) of the Criminal Code for access to funds seized by police as alleged proceeds of crime in order to pay legal fees while facing multiple serious criminal charges including kidnapping and murder.

The court applied the three‑part test requiring proof of an interest in the funds, the absence of other assets or means to fund legal expenses, and the absence of competing ownership claims.

While the Crown conceded the accused had an interest in the seized funds, the court found he failed to establish that he lacked other available assets.

Given extensive evidence of undisclosed or unaccounted assets and the applicant’s lack of credibility, the court was not satisfied on a balance of probabilities that no other means existed to fund counsel.

The trustee of a deceased lawyer’s estate brought a motion for summary judgment seeking dismissal of a third party negligence claim arising from mortgage transactions handled by the deceased solicitor.

The estate argued the claim was barred by the two‑year limitation period under s. 38(3) of the Trustee Act, which governs tort claims by or against estates.

The responding party argued that the limitation period should be tolled due to fraudulent concealment or, alternatively, special circumstances.

The court held that while a solicitor‑client relationship constituted a special relationship, the evidence demonstrated negligence rather than unconscionable conduct required to establish fraudulent concealment.

The doctrine of special circumstances could not be used to commence a new claim after expiry of the limitation period, and the third party claim against the estate was dismissed.

The trustee in bankruptcy suspected the bankrupt was hiding assets using a third party.

The trustee sought an order compelling the bankrupt and his lawyer to disclose the identity of the person paying the bankrupt's legal fees for a previous motion.

The motion judge granted the order, finding the information was not privileged.

On appeal, the Court of Appeal allowed the appeal, holding that administrative information relating to the solicitor-client relationship, including the identity of the person paying the lawyer's bills, is presumptively privileged.

The court found the presumption was not rebutted because the information was relevant to the merits of the underlying dispute and its disclosure would reveal confidential communications.

The moving parties sought costs on a full indemnity basis following a motion involving a certificate of pending litigation, arguing that the opposing party engaged in material non‑disclosure on an ex parte motion and breached the deemed undertaking rule.

The responding party argued that any non‑disclosure was inadvertent and that the alleged breaches were not sufficiently serious to justify substantial or full indemnity costs.

The court reiterated that substantial indemnity costs are reserved for rare and exceptional cases involving reprehensible conduct.

Finding that the conduct did not meet that threshold, the court declined to award full indemnity costs.

Instead, the moving parties were awarded partial indemnity costs in the amount reflected in their bill of costs.

HSBC Bank Canada brought a motion for an order that Jack Lechcier-Kimel requires leave to appeal an order adding HSBC as a creditor in his bankruptcy application.

Lechcier-Kimel brought a cross-motion for leave to appeal.

The Court of Appeal held that leave is required because adding a party does not involve future rights under s. 193 of the Bankruptcy and Insolvency Act.

The court further held that a single judge has jurisdiction to grant leave.

Leave to appeal was refused because the proposed grounds of appeal lacked prima facie merit.