Christopher Clemmer

The defendants brought a motion to dismiss the plaintiff's action as an abuse of process.

The plaintiff, an estate trustee, sued her former lawyer alleging he settled a share sale without authority and for less than fair market value.

The court found that the issue of the shares' value had already been conclusively determined in a prior application, making the current claim regarding share value an abuse of process.

However, the court allowed the claim regarding the lawyer's actual authority to proceed as a triable issue.

Costs were awarded to the defendants against the estate and the trustee personally.

The plaintiff brought a motion to validate service of a Statement of Claim for wrongful dismissal that was improperly served by facsimile transmission in 2013, or alternatively to extend the time for service.

The plaintiff's former solicitors had failed to properly serve the claim and took no steps to advance the litigation for several years.

The court found that the defendant had likely received the improperly served claim and was aware of the impending litigation.

Concluding that the defendant would not suffer prejudice caused by the delay and that solicitor negligence is not a reason to refuse an extension, the court validated the service by facsimile transmission.

The plaintiffs brought a motion to set aside an administrative dismissal of their solicitor’s negligence action under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual approach and considered the Reid factors, including explanation for delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendant.

The delay in setting the action down for trial was attributed primarily to inadvertence arising from a medical emergency affecting counsel’s administrative assistant responsible for the office tickler system.

The court found no significant prejudice to the defendants and determined that the litigation had otherwise progressed toward trial.

In the interests of justice, the administrative dismissal was set aside and the action ordered to be set down for trial.

The applicant landlord brought an application seeking an order requiring the respondent commercial tenant to execute the landlord's current standard form lease, which included a new demolition clause, as a condition of exercising its option to renew.

The original lease stated that any renewal would be on the same terms except that the landlord could require the execution of its then-current standard form lease.

The court applied principles of commercial contract interpretation and found that the clear wording of the lease permitted the landlord to require the tenant to sign the new standard form lease, even if it contained material changes such as a demolition clause.

The application was granted.

The plaintiff moved for summary judgment seeking the return of a $50,000 deposit after refusing to close a real estate transaction, alleging a misrepresentation regarding the maturity date of an assumed mortgage.

The defendant argued the motion was premature because the action proceeded under Rule 76 (simplified procedure) and discovery steps had not yet occurred, preventing the defendant from obtaining documents and evidence potentially showing the plaintiff affirmed the contract after learning of the misrepresentation.

The court held that, particularly under the simplified procedure where cross‑examination on affidavits is restricted, fairness requires that parties have a meaningful opportunity to obtain documentary and discovery evidence before responding to a summary judgment motion.

The court found that the defendant had not yet been able to put its best foot forward and that there remained a genuine issue requiring trial regarding potential affirmation of the contract.

The summary judgment motion was therefore dismissed without prejudice.