Eni Eski

The Corporation of the City of Ottawa moved to set aside a Registrar's order dismissing its action for delay and to reinstate the action.

The motion was opposed by some third parties.

The court applied the test for setting aside a dismissal order for delay, finding that the City provided a satisfactory explanation for the delay, consistently intended to prosecute the action, and acted promptly to address the dismissal.

The court also determined that the opposing parties would not suffer significant prejudice from the reinstatement.

The motion was granted, reinstating the main action and automatically reviving derivative third-party claims.

The appellants appealed the dismissal of their motion for leave to amend their dental malpractice claim.

The motion judge found the proposed amendments constituted new, statute-barred claims, causing non-compensable prejudice to the respondent.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the amendments created a new claim and that the finding of actual prejudice due to the expired limitation period was entitled to deference.

The appeal was dismissed with costs.

Following a successful motion by the defendant law firm for a declaration that lawyer-client privilege had been waived by co-defendants in a proposed class action, the court determined the costs of the motion.

The opposing defendants argued for no costs or a reduced amount, citing the novel circumstances and section 31 of the Class Proceedings Act.

The court rejected these arguments, finding the motion was of considerable strategic importance and not a test case justifying a departure from normal costs rules.

Costs were fixed at $16,000 all-inclusive, split equally between the two groups of opposing defendants.

In a proposed class action concerning a failed condominium development, the plaintiff alleged professional negligence against Blaney McMurtry LLP, a law firm that prepared investment instruments.

Blaney McMurtry LLP brought a motion for a declaration that solicitor-client privilege with its co-defendants had been waived.

The court found that several co-defendants, including those who had settled with the plaintiff and provided an affidavit criticizing the law firm's work, had impliedly waived privilege.

This waiver occurred because they made the quality of legal advice a material issue in the litigation, thereby making it unfair and inconsistent to maintain privilege.

The motion for a declaration of waiver was granted.