David Sydney Steinberg

Investors brought an action against their accountant and a lawyer alleging breach of fiduciary duty and breach of contract arising from losses on second mortgage investments after mortgagor defaults.

The moving defendants sought summary judgment arguing there was no causal link between any alleged breach and the losses, particularly because the investors obtained independent legal advice and increased their investments thereafter.

The court held that equitable compensation for breach of fiduciary duty requires a causal connection between the breach and the loss.

The evidence demonstrated the losses resulted from the plaintiffs’ own investment decisions and not from any alleged non‑disclosure.

The court also found that a later agreement to renew the mortgage was conditional upon refinancing of a first mortgage and therefore unenforceable when that condition precedent failed.

Following release of reasons in a prior motion, the court invited submissions on costs.

The plaintiff and defendants consented that the costs of the motion would be assessed by the trial judge in the cause rather than determined immediately.

Two non-parties involved in the motion waived any entitlement to costs.

The court ordered that no costs were payable to those non-parties.

The defendants sought relief from a non-disclosure agreement and production of documents and financial statements to support a pleaded defence in a debt action.

The responding party and non-parties resisted production on relevance grounds and requested confidentiality protection if disclosure were ordered.

The court held the pleaded defence raised issues making the requested materials relevant and ordered production.

Applying the Sierra Club framework, the court granted a sealing order over the NDA documents and financial statements, limited to preserve openness and subject to reconsideration by the trial judge.