Christopher L. Hluchan

This motion addressed whether a main action and a third-party action, stemming from a property dispute involving an encroaching structure, should be heard concurrently or sequentially.

The Plaintiffs sought a combined hearing, while the Defendants and Third Parties preferred separate proceedings.

The court, emphasizing judicial efficiency and fairness, determined that the intertwined factual and legal issues, particularly concerning the appropriate equitable remedy for the admitted trespass and the allocation of financial responsibility among all parties, necessitated a single, consolidated trial.

The motion for concurrent hearings was granted to avoid multiplicity of actions and the risk of inconsistent findings.

The appellant appealed a summary judgment dismissing his negligence action against a surveying company regarding a boundary dispute.

The motion judge found the claim was statute-barred under the Limitations Act, 2002, as the appellant knew of the encroachment and had sufficient information to sue more than two years before commencing the action.

The Court of Appeal upheld the decision, confirming the action was out of time and rejecting the appellant's procedural arguments regarding the timing of the summary judgment motion.

Following an earlier ruling on a motion, the court addressed a dispute concerning the allocation of agreed costs.

The parties agreed that $9,000 in costs would be payable to two respondents, but the applicants argued that additional respondents should share liability for those costs.

The court found that the additional respondents had been present only on a watching brief and were not part of the bifurcated application.

The court rejected the applicants’ position and ordered that those respondents should not share liability.

Instead, the applicants were ordered to pay additional costs to those respondents for having to participate in the costs submissions.

The plaintiff moved for directions staying a defendant accountant's pending summary judgment motion alleging the claim was statute-barred under the Limitations Act, 2002.

The court held the proposed limitations issue was distinct from the merits of the negligence claims against both the accountant and the solicitor, and was not so intertwined with the broader proceeding as to make summary judgment inappropriate.

Applying the post-Hryniak approach, the court concluded that allowing the summary judgment motion to proceed could narrow issues and potentially extract one defendant from the litigation without unfairness.

The motion to stay the summary judgment motion was dismissed, with costs reserved.

On a summary judgment motion, the moving defendants argued that claims arising from alleged overpayments, fraud, breach of fiduciary duty and oppression were barred by a two-year limitation period.

The court held that the plaintiffs' action, as framed, was an action to enforce a prior Court of Appeal order and that no limitation period applied to such enforcement proceedings.

Judgment was granted to permit recovery of the overpayments made by the trustee to itself and to the law firm in the amounts previously determined.

In a later amended endorsement, the court clarified the earlier ruling and accepted the responding parties' position on the identified clarification issues.

In a professional negligence action against a chartered accounting firm arising from alleged failure to detect employee fraud, the plaintiff moved for further production of the defendant’s records after discoveries had already taken place.

The request relied on a new expert report asserting that a professional accountant required access to the complete set of documents and correspondence relating to the defendant’s engagements with the plaintiff from 2001 to 2009.

The court held that the requested production largely duplicated issues that could have been addressed on the earlier production motion and amounted to a fishing expedition.

The moving party failed to demonstrate a change in circumstances or identify specific deficiencies in the existing production.

The motion for further production was dismissed and costs were awarded to the responding party.

Following the dismissal of the defendant's motion for summary judgment, the parties made written submissions on costs.

The plaintiff sought substantial indemnity costs, arguing the motion was unreasonable.

The defendant argued no costs should be awarded or, alternatively, sought its own costs for relief resolved prior to the motion.

The court found the defendant's motion was not unreasonable based on the pleadings and awarded the plaintiff partial indemnity costs fixed at $7,000, declining to award the defendant costs for the pre-motion resolved issues.

The successful respondent on an appeal sought costs on a partial indemnity basis.

The appellants argued the costs should be reduced due to the respondent's cross-appeal and the attendance of multiple counsel.

The Court of Appeal rejected the argument regarding the cross-appeal, finding it was a reasonable step to defend the trial result.

However, the Court agreed that the respondent should not be compensated for the attendance of four lawyers or for a prior motion.

Costs were fixed at $250,000 inclusive of disbursements and GST.