David Keith Alderson

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiff's defamation claim, arguing that the allegedly defamatory statements were protected by absolute privilege as they were made in preparation for contemplated litigation.

The plaintiff opposed and also had a separate motion for particulars.

The court first addressed the defendants' motion, admitting an affidavit from one of the defendants.

Applying the five factors for absolute privilege in pre-litigation communications, the court found that the communication was protected by absolute privilege, as it was directly concerned with actual or contemplated judicial proceedings and made for the purpose of obtaining evidence from a limited audience.

Consequently, the court granted the defendants' motion, striking the Statement of Claim without leave to amend.

The appellant, New Era Development (2011) Inc., appealed a summary judgment decision granting fees of $400,000 to the respondent mortgage broker, Rescon Financial Corporation, and dismissing New Era's counterclaim.

The dispute concerned whether Rescon was entitled to commission upon producing an acceptable commitment letter or only upon actual funding.

The motion judge found the commitment letter acceptable, rejected New Era's defences based on fiduciary duty breach, negligence, and statutory violations, and dismissed the counterclaim.

The Court of Appeal upheld the decision on all grounds, finding no genuine issues requiring trial.

The defendant, New Era Development (2011) Inc., brought motions seeking to compel answers to undertakings and refusals from the plaintiff's representative, Ebrahim Bulbulia, arising from an examination for discovery, and for leave to deliver an expert report.

The plaintiff, Rescon Financial Corporation, a mortgage broker, claimed $400,000 in fees, which the defendant denied, alleging breach of contract and fiduciary duties.

The court largely dismissed the defendant's requests to compel answers, upholding most refusals as irrelevant or disproportionate, except for the identity of one specific private lender.

The court also denied the defendant leave to deliver an expert report, finding that the proposed evidence was not responsive to cross-examination, would cause non-compensable prejudice to the plaintiff, and the defendant failed to provide a reasonable explanation for the delay in seeking expert evidence.

The plaintiff, Andreas Haas, sought substantial indemnity costs after successfully resisting a motion to stay his action in favour of arbitration.

Haas argued for substantial indemnity based on a Rule 49.10 offer to settle.

The court found that Rule 49.10 did not apply to a successful responding party in a motion and that there was no egregious conduct by the moving parties to warrant substantial indemnity under Rule 49.13 or 57.01.

Considering factors under Rule 57.01, including the complexity of issues and a party's initial refusal to admit, the court fixed costs on a partial indemnity basis at an all-inclusive amount of $25,500.00, to be divided evenly among the three defendants.

The respondents in an application for assessment of solicitors’ accounts brought a motion to consolidate that application with a related action seeking payment of outstanding legal accounts and enforcement of a retainer agreement.

The moving parties argued consolidation under Rule 6.01 of the Rules of Civil Procedure would avoid multiplicity of proceedings because both matters involved overlapping issues relating to the retainer agreement and the accounts rendered.

The court held that the issues raised in the assessment application were comparatively straightforward and could be determined efficiently through the application process rather than a lengthy trial.

Consolidation would likely create delay and additional expense and would undermine the expeditious process contemplated for assessments under the Solicitors Act.

The motion to consolidate was therefore dismissed.

The defendants brought a motion for summary judgment arguing that the plaintiff’s claim was barred by a limitation period.

The court held that the moving parties failed to provide a proper evidentiary record, relying largely on pleadings and correspondence and offering only a legal assistant as affiant.

Applying the principles in Combined Air Mechanical Services Inc. v. Flesch, the court found that a full appreciation of the issues requires substantive affidavit evidence and adequate disclosure, particularly where discoverability may be engaged.

Given the absence of documentary discovery and meaningful evidence from the defendants, the motion was premature.

The motion was adjourned to permit documentary and oral discoveries before the summary judgment motion proceeds.

The defendants sought security for costs against non-resident plaintiffs in two related civil fraud actions involving failed investment schemes.

Following an appeal, the matter was remitted to reconsider whether the plaintiffs had a “good chance of success” on the merits, which could weigh against ordering security for costs.

The court reviewed extensive evidentiary allegations concerning the role of a law firm and its partner in facilitating investment transfers connected to the alleged fraud.

The court held that while the record raised genuine issues for trial, the plaintiffs failed to demonstrate a “good chance of success,” particularly regarding whether the defendants owed a duty of care to non-client investors or participated in the alleged fraud.

Security for costs was therefore ordered on the same terms previously imposed.

The plaintiffs appealed an order of a case management master requiring them to post additional security for costs in complex civil litigation.

The plaintiffs were non-residents of Ontario and did not claim impecuniosity, but argued that the strength of their claims justified denying security for costs.

The court held that the master applied the wrong legal standard by requiring the plaintiffs to show an "overwhelming likelihood of success" rather than the correct standard of a "good chance of success" when assessing the merits under Rule 56.01 of the Rules of Civil Procedure.

Because this constituted an error of law, the appeal was allowed in part and the matter was remitted to the case management master for reconsideration using the proper standard.