D. Naymark

The plaintiff brought a motion to vary a 2018 consent order that dismissed its motion to set aside a registrar's dismissal order.

The plaintiff argued that its former counsel made an inadvertent mistake by agreeing to dismiss the motion against all defendants, rather than just the MEC defendants, and sought to continue the action against the Pace defendants.

The court dismissed the motion, finding no common mistake, fraud, or misrepresentation to justify varying the consent order, which accurately reflected the fairly negotiated minutes of settlement.

The court emphasized the relative sanctity of consent orders and the strong presumption in favour of the finality of settlements.

The moving parties requested to schedule a motion to bar a witness from testifying at the upcoming trial, alleging the witness had previously perjured himself and ignored court orders.

The case management judge declined to schedule the motion, finding that admissibility of evidence is a matter for the trial judge.

The judge emphasized that allowing the interlocutory motion would only cause further delay and tactical gamesmanship in an already protracted litigation.

In complex commercial litigation involving a Mareva injunction motion, counsel attended the court without following the Commercial List’s procedure for requesting an urgent appointment.

The court emphasized that counsel must contact the Commercial List Office before appearing urgently before a judge and may not bypass the process by attending unannounced in an attempt to vary a prior order.

Although the parties agreed to adjourn the Mareva motion and vary certain procedural timelines, the court criticized the improper attendance and ruled that the plaintiffs would not be entitled to claim costs for the unnecessary appearances.

The court granted the adjournment on consent with modifications and provided further scheduling directions for cross-examinations and the motion return.

The interim injunction remained in effect pending the rescheduled hearing.

The moving party brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking to hold opposing counsel personally liable for litigation costs allegedly caused by misconduct, including advancing false evidence, suppressing documents, and encouraging clients to give perjured testimony.

The court conducted a detailed review of the history of the litigation and the governing principles for imposing personal cost liability on counsel.

While the court found that counsel had made some serious litigation errors, including failing to properly list privileged documents in an affidavit of documents and mishandling document preservation, it held that the conduct did not cause costs to be incurred without reasonable cause within the meaning of Rule 57.07.

The court emphasized the adversarial nature of civil litigation, the extreme caution required before awarding costs personally against lawyers, and the availability of procedural remedies to address discovery issues.

The motion was dismissed.