David Silver

The defendant brought a motion to dismiss the plaintiff's action for delay under Rules 24.01(2) and 48.14(1) of the Rules of Civil Procedure.

The action, arising from a 2010 theft and vandalism incident, was struck from the trial list in April 2015 and not restored.

The court found inordinate and inexcusable delay caused by the plaintiff's counsel, which resulted in a presumption of prejudice.

The plaintiff failed to rebut this presumption, as relevant documents were not produced and a key witness's memory had faded.

The motion was granted and the action was dismissed.

The appellant appealed a summary judgment order granted in favor of the Royal Bank of Canada and dismissing the appellant's counterclaim.

The appellant argued that the motion judge erred in refusing to accept late-filed materials for the summary judgment motion.

The appellant also brought a motion to adduce fresh evidence, including an affidavit from his lawyer explaining that he had misdiarized the filing date.

The Court of Appeal upheld the motion judge's decision, finding no basis to interfere with the discretionary refusal to accept late materials and denying the motion for leave to adduce fresh evidence.

The appeal was dismissed with costs awarded to the respondent on a substantial indemnity basis.

The plaintiffs moved to set aside a Registrar's dismissal, and the defendant cross-moved to dismiss the action for delay.

The court applied the Reid Factors, finding the plaintiffs provided an adequate explanation for delay, demonstrated inadvertence by counsel, and brought the motion promptly.

Crucially, the defendant failed to establish real prejudice.

The court emphasized the policy of resolving disputes on their merits, especially when delay is due to counsel's inadvertence.

The court also declined to enforce a consent order's dismissal clause under Rule 60.12, deeming dismissal an extreme remedy not warranted by the plaintiffs' conduct.

The appellant appealed a summary judgment dismissing her action against a lawyer for breach of contract and breach of fiduciary duties arising from real estate transactions in 2011.

The motion judge found the claim was statute-barred, as the appellant knew of her claim and damages by May 2012, but did not commence the action until September 2014, more than two years later.

The appellant argued the motion judge erred in analyzing discoverability and in finding no medical evidence of incompetence during the relevant period.

The Court of Appeal upheld the motion judge's findings and conclusions as available on the record and found no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.

The defendants brought a motion to set aside an order by Master Haberman, which had struck their statement of defence and dismissed their counterclaim due to their counsel's late attendance.

They also sought to set aside a Registrar's noting in default, default judgment, and writs of seizure and sale obtained by the plaintiff without notice while counsel were actively corresponding.

The court found the default judgment was improperly obtained through "sharp practice" and lack of notice, setting it aside without an inquiry into the merits of the defence.

The Master's order was also set aside under Rule 37.14(1)(b) due to counsel's inadvertence, emphasizing a contextual approach to prevent a miscarriage of justice.

The court imposed strict terms for the defendants to regularize their file and awarded $15,000 in costs to the defendants, payable by the plaintiff, largely due to the plaintiff's counsel's unacceptable conduct.

The plaintiff, The Canada Trust Company, Trustee, brought a motion under Rule 37.14 to set aside a Registrar's dismissal order from May 3, 2013, which administratively dismissed the action for delay.

The court applied the four-pronged Reid test, considering the explanation for delay, inadvertence in missing the deadline, promptness of bringing the motion, and prejudice to the defendants.

While the court found the missed deadline was inadvertent, it determined that the plaintiff failed to adequately explain the full extent of the delay and did not bring the motion promptly.

Crucially, the court found significant non-compensable prejudice to the defendants, Boulos and Henriette Daher, due to the inordinate passage of time, the nature of their *non est factum* defence relying on faded memories, and their declining health, which rendered them unfit to participate in trial.

The motion to set aside the dismissal was therefore dismissed.

The plaintiff and all defendants by counterclaim brought motions for summary judgment against the defendants/plaintiffs by counterclaim (the Smiths) concerning a property refinancing.

The Smiths alleged misrepresentation of mortgage debt and breach of trust/negligence by the solicitors involved.

The court found no genuine issue for trial, concluding the Smiths' position lacked credibility due to their failure to disclose the true mortgage amount, their acceptance of the refinancing proceeds, and the absence of any actual loss.

The court granted summary judgment to the moving parties, dismissing the Smiths' counterclaim and ordering full indemnity costs, deeming the action unmeritorious.

The plaintiffs appealed an order dismissing their action for delay following a status hearing.

The action arose from alleged property damage during a swimming pool cleaning.

The Divisional Court found that the Master erred in her application of the test for dismissal for delay by failing to consider the overall context of the litigation, incorrectly identifying the period of delay, and mechanically applying a presumption of prejudice.

The appeal was allowed, the dismissal order was set aside, and the action was ordered to proceed to mediation and trial.

The plaintiff's wrongful dismissal action was subject to a status hearing to show cause why it should not be dismissed for delay under former Rule 48.14(13).

The plaintiff explained the delay was due to working abroad in remote locations and experiencing health issues.

The court accepted the explanation and found the defendants would suffer no non-compensable prejudice, as the delay was not particularly lengthy and the defendants had not advanced the claim themselves.

The action was allowed to continue.

The defendant solicitor brought a motion for summary judgment dismissing a negligence action arising from his representation of a corporation in an injunction proceeding.

The plaintiff cross-moved to amend the statement of claim to add the corporation as a plaintiff after the limitation period had expired, arguing the omission was a misnomer.

The court held that the omission was a deliberate decision rather than a misnaming and therefore could not be corrected after the limitation period under the Limitations Act, 2002.

On the summary judgment motion, the court found no evidence that the plaintiff personally suffered damages and held that claims relating to corporate losses belonged to the corporation.

Summary judgment was granted and the action was dismissed.

The defendants sought leave to appeal a decision dismissing their motion to remove the plaintiff's counsel.

The defendants argued that a partner at the plaintiff's law firm was a compellable witness regarding mitigation efforts in the underlying negligence action.

The Divisional Court granted leave to appeal, finding that the motion judge's approach to determining whether the lawyer was a compellable witness conflicted with existing case law by failing to weigh all relevant factors.

The court concluded that the issue of right to counsel and potential conflicts of interest raised important principles warranting appellate review.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that it could not go behind findings made in earlier proceedings and agreeing with the motion judge that the appellants' claims had no potential merit.

The appeal was dismissed with substantial indemnity costs awarded to the respondents.

The defendant was charged with two counts of assault arising from events on March 25, 2012, when police attended his Toronto apartment in response to his call requesting removal of an unwanted guest.

The complainant and defendant had engaged in an intimate affair; she arrived for a one-night visit that extended to four days.

Following heated arguments about her affair with another man and her refusal to leave his apartment despite repeated requests, physical altercations ensued.

The defendant was arrested despite being the one who called police.

The Crown alleged multiple assaults; the defendant claimed self-defence and defence of property.

The trial judge found the complainant's testimony highly unreliable and internally inconsistent, with multiple material contradictions across her three different accounts.

The defendant's evidence regarding a single defensive restraint incident was substantially corroborated by the complainant's own testimony.

The judge acquitted the defendant on both counts, finding reasonable doubt as to guilt and establishing an air of reality for both self-defence and defence of property claims.

The court addressed costs following a motion to set aside a purported ex parte default judgment that bore a forged judicial signature.

The court found that the plaintiffs had fabricated the judgment by copying and pasting the judge’s signature and had circulated the fake order to opposing parties and regulatory bodies as if it were a valid court judgment.

The court concluded that the conduct constituted a fraudulent and scurrilous attack on the administration of justice and amounted to reprehensible, scandalous, and outrageous behaviour.

Applying the principles governing full indemnity costs, the court held that the defendants were entitled to full indemnity costs as a form of chastisement and deterrence.

The plaintiffs were also barred from taking further steps in the proceeding until the costs were paid in full.

The defendant moved to set aside a default judgment, vacate a writ of execution, and extend time to deliver a statement of defence in a negligence and breach of retainer claim arising from a failed mortgage transaction.

The court held the default judgment was irregular because the claim for professional negligence and breach of contract was not a liquidated demand capable of supporting default judgment without assessment of damages.

Although the court found the defendant had likely been personally served, it accepted that the default was not deliberate and that the defendant moved promptly upon learning of the writ.

The noting in default was set aside and the defendant was permitted to deliver a defence.

The court also vacated the writ of execution, finding that maintaining it would amount to impermissible pre‑judgment execution akin to a Mareva injunction without the required evidentiary basis.

The defendants sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a summary judgment motion after the action had been set down for trial, seeking dismissal of claims alleging negligence, breach of fiduciary duty, and breach of trust by a former solicitor.

The plaintiff alleged that the solicitor negligently advised against a lucrative media interview, mishandled negotiations for a lucrative rematch race, failed to ensure race earnings were deposited into an athletic reserve fund, and improperly received legal fees from that fund.

The court granted leave and held that the claims disclosed no genuine issue requiring a trial.

The evidence showed the allegations were unsupported, many were contradicted by documentary records, and the plaintiff failed to provide direct affidavit evidence from witnesses with personal knowledge.

The court further found the claims were statute-barred under the Limitations Act, 2002 and barred by laches due to significant delay and prejudice to the defendants, including the death of key witnesses.

A law firm acting on a contingency fee basis was discharged by its clients, who retained successor lawyers.

The original law firm sued the successor lawyers for inducing breach of contract and intentional interference with economic relations, alleging they assisted the clients in avoiding payment of fees.

The motion judge struck the claim for failing to disclose a reasonable cause of action.

The Court of Appeal dismissed the appeal, finding the statement of claim contained only bald, unsupported assertions of professional misconduct and no facts capable of supporting the alleged causes of action.