David Shawn Lipkus

The appellant appealed the dismissal of her Superior Court action against Canada Post Corporation and Norton Rose Fulbright Canada, which was found to be frivolous, vexatious, and an abuse of process under Rule 2.1.01.

The Superior Court action alleged misconduct by the respondents in a Federal Court proceeding.

The Court of Appeal dismissed the appeal, affirming the application of absolute privilege for statements made in judicial proceedings and the prohibition against collateral attack, finding no arguable merit to the appellant's grounds of appeal, including a recusal request.

The appellants purchased railway land in Niagara Falls from Canadian National Railway Company (CN) in 2008, with CN taking back a mortgage.

The appellants defaulted and CN sued.

The appellants brought a third-party action against their solicitors (McMillan LLP, Philip Thompson, and Marssa Giahi) for negligence, claiming they failed to properly advise about a Director's order under the Environmental Protection Act registered on title.

The respondents obtained summary judgment dismissing the third-party claim.

The appellants appealed, arguing the motion judge erred in applying Rule 20 principles and that genuine issues for trial existed regarding the duty of care, knowledge of the Director's order, and causation.

The Court of Appeal upheld the summary judgment, finding no negligence claim against McMillan due to lack of involvement in the final transaction, and no duty to warn Thompson and Giahi given the "as is" agreement and client's explicit instructions not to investigate environmental concerns.

This endorsement addresses the costs arising from a successful summary judgment motion where the third parties (McMillan LLP, Philip Thompson, and Marssa Giahi) were granted judgment in a solicitors' negligence action brought by the defendants (Crosslink Bridge Corp. and Andrew Penuvchev).

The third parties sought substantial indemnity costs, citing complete success and a Rule 49 offer to settle.

The defendants opposed, raising access to justice concerns and disputing the reasonableness and proportionality of the hours claimed.

The court, applying Rule 57.01 factors and the principle of proportionality, found the time spent by counsel for the third parties to be disproportionate to the result.

Consequently, the court reduced McMillan LLP's requested costs from $209,897.73 to $140,000 and Philip Thompson and Marssa Giahi's requested costs from $256,604.64 to $110,000, inclusive of fees, disbursements, and HST, deeming these adjusted amounts reasonable in the circumstances.

This endorsement addresses the costs arising from a successful summary judgment motion where the third parties (McMillan LLP, Philip Thompson, and Marssa Giahi) were granted judgment in a solicitors' negligence action brought by the defendants (Crosslink Bridge Corp. and Andrew Penuvchev).

The third parties sought substantial indemnity costs, citing complete success and a Rule 49 offer to settle.

The defendants opposed, raising access to justice concerns and disputing the reasonableness and proportionality of the hours claimed.

The court, applying Rule 57.01 factors and the principle of proportionality, found the time spent by counsel for the third parties to be disproportionate to the result.

Consequently, the court reduced McMillan LLP's requested costs from $209,897.73 to $140,000 and Philip Thompson and Marssa Giahi's requested costs from $256,604.64 to $110,000, inclusive of fees, disbursements, and HST, deeming these adjusted amounts reasonable in the circumstances.

The third-party solicitors McMillan LLP, Philip Thompson, and Marssa Giahi brought a motion for summary judgment to dismiss claims of negligence brought against them by defendants Crosslink Bridge Corp. and Andrew Penuvchev.

The defendants alleged the solicitors failed to warn them of environmental risks associated with purchasing contaminated railway lands.

The court found that the solicitors were not negligent, as their retainers were limited, the clients were sophisticated and had conducted their own due diligence, and the environmental disclosure documents were not provided to the solicitors.

Furthermore, the court found the third-party claims were barred by the expiration of the applicable limitation periods.

The motion for summary judgment was granted, and the claims against the third parties were dismissed.

The plaintiff moved under Rule 59.06(2) to set aside or vary a prior order dismissing summary judgment, alleging fraud or newly discovered facts concerning the non-disclosure of a substantial payment from the defendant solicitor's trust account to a co-defendant paralegal, labelled "Sawah fees." The plaintiff also sought to compel the defendant solicitor's examination for discovery in Mississauga rather than Winnipeg.

The court found the non-disclosure suspicious but determined the new evidence was insufficient to overturn the summary judgment dismissal, concluding that the matter should proceed to trial for credibility assessments.

The court granted the request for discovery in Mississauga, citing efficiency and the simplified rules.

The defendant, a paralegal, moved for summary judgment to dismiss the plaintiff's claim of negligence and breach of contract.

The plaintiff alleged the defendant failed to seek an adjournment at a Landlord and Tenant Board hearing and was negligent in subsequent representation.

The court applied the Hryniak v. Mauldin standard, finding no genuine issue for trial.

It concluded that the defendant did not breach his duty or contract regarding the adjournment, as the plaintiff had instructed him not to seek it, and there was no evidence a different outcome would have resulted.

The court also found no negligence in the defendant's conduct at a later hearing.

The defendant's motion for summary judgment was granted, and the plaintiff's action was dismissed.

The moving parties sought summary judgment dismissing the claim as statute‑barred under the Limitations Act, 2002 in relation to legal services provided in connection with a real estate transaction and related trust agreement and power of attorney.

The responding party argued the limitation period had not begun to run because she lacked the mental capacity to appreciate that she had a potential claim.

The court held that the evidence filed did not establish mental incapacity sufficient to suspend the limitation period, noting the absence of admissible expert evidence and the failure of the responding party to provide her own affidavit evidence.

The court found the limitation period began when the responding party consulted counsel asserting the invalidity of the documents.

As the claim was commenced more than two years later, the action against the moving parties was statute‑barred.

The plaintiff brought a motion to stay pending summary judgment motions brought by the defendants, arguing that the motions were premature and that discovery was necessary to develop a full evidentiary record capable of satisfying the “full appreciation” test.

The defendants opposed the stay and argued that the issues—primarily a limitation period defence under the Limitations Act, 2002—were appropriate for determination on summary judgment.

The court reviewed the post‑2010 summary judgment framework articulated by the Court of Appeal and considered whether the evidentiary record required the procedural advantages of a trial.

The court found that the dispute was largely document‑driven, involved limited witnesses, and centred on whether the plaintiff knew or ought to have known of the loss of her beneficial interest in property by at least April 2009.

The court held that the matter was suitable for summary judgment and dismissed the motion to stay.