Gavin J. Tighe

The defendant lawyer moved to strike the plaintiff's professional negligence claim.

The plaintiff alleged the lawyer was negligent in a prior unsuccessful lawsuit against a bank for failing to adduce expert evidence on the duty of care.

The court granted the motion to strike, finding that the prior courts had definitively ruled the bank owed no duty of care based on the contract, making the negligence claim an improper collateral attack on those decisions.

The claim was struck with leave to amend to plead claims not predicated on the prior decisions being incorrect.

The moving parties sought an order extending the time to file a notice of appeal of a Superior Court decision that struck their statement of claim.

The Court of Appeal denied the motion, finding that the proposed appeal lacked merit and that granting the extension would cause ongoing prejudice to the responding parties due to the scandalous and vexatious nature of the allegations, which included conspiracy theories against lawyers, expert witnesses, court staff, and judges.

The court emphasized that the justice of the case did not warrant an extension given the lack of arguable grounds and the vexatious nature of the litigation.

The appellant, R.W. (Brad) Blair, appealed the dismissal of his defamation action against Premier Doug Ford, which was dismissed under an anti-SLAPP motion (s. 137.1 of the Courts of Justice Act).

Ford cross-appealed the costs award.

The Court of Appeal dismissed Blair's appeal, upholding the dismissal of the defamation action, and allowed Ford's cross-appeal in part regarding the timing of costs payment, making the full award immediately payable.

The court also quashed appeals from preliminary interlocutory orders due to lack of jurisdiction.

The appellants appealed a motion judge's decision that prevented them from discontinuing their action against certain defendants and granted summary judgment dismissing the action against those defendants.

The Court of Appeal found that the motion judge erred in interpreting the Rules of Civil Procedure regarding when pleadings are closed in a multi-defendant action, clarifying that pleadings are not closed until they are complete against all defendants.

However, the Court upheld the motion judge's alternative finding that the notice of discontinuance constituted an abuse of process and affirmed the grant of summary judgment, as well as the award of substantial indemnity costs, finding no genuine issue for trial and that the action was frivolous and vexatious.

The moving party brought a motion for leave to appeal the order of Ferguson J. dated February 2, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The defendant in a solicitor's negligence action appealed a master's order requiring him to answer five questions refused at his examination for discovery.

The Superior Court allowed the appeal in part.

The court held that the defendant did not have to answer questions asking him to identify primary and secondary legal sources regarding testamentary capacity, as this improperly required a fact witness to conduct legal research and provide an expert opinion on the standard of care.

However, the court upheld the master's order requiring the defendant to answer questions about his understanding of his duty to ascertain testamentary capacity and regarding his professional liability insurance coverage.

This is an appeal from a Master's order removing Paul Starkman and Starkman Barristers LLP as lawyers of record for the plaintiff/appellant, 8657181 Canada Inc., on the basis that Starkman was likely to be a material witness in the litigation.

The underlying action was a solicitor's negligence claim brought by the plaintiff against its former lawyers.

The court dismissed the appeal, affirming the Master's decision that Starkman's dual role as advocate and likely witness on issues of mitigation and damages created an irreconcilable conflict, impairing the administration of justice.

The defendant, David Franklin, brought a motion under s. 137.1 of the Courts of Justice Act (anti-SLAPP legislation) to dismiss an action brought against him by the Mizzi family.

The Mizzi family sued Franklin, his client Michael Cavanagh, and others for intrusion upon seclusion, intentional infliction of mental and emotional suffering, and extortion, alleging that Franklin and Cavanagh hacked emails, created a defamatory website, and made threats.

Franklin argued the action arose from his public comments on a Global News broadcast about a financial scandal, which he contended was a matter of public interest.

The court found that while Franklin's comments were indeed an expression relating to a matter of public interest, the Mizzi family's action did not "arise from" that expression.

Instead, the court determined the action genuinely arose from the alleged intrusion on seclusion and extortion that occurred independently of and prior to the news broadcast.

Consequently, the court dismissed Franklin's motion to dismiss the action, allowing the Mizzi family's claims to proceed to trial on their merits.

Following the dismissal of the plaintiff's defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the defendant sought costs on a full indemnity basis.

The court found that full indemnity was not appropriate because the action was not a SLAPP suit, and instead awarded costs on a partial indemnity scale.

Noting that both parties engaged in an unnecessary 'deep dive' into the evidence, the court fixed the costs at $130,000 all-inclusive, payable in two installments.

The defendants sought to dismiss two actions brought by the self-represented plaintiff under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The actions involved allegations of improper disclosure of medical information and forged consent, which had already been conclusively dismissed in a prior summary judgment motion.

The court found that the new actions were an attempt to relitigate the same issues, constituting an improper collateral attack and res judicata.

The actions were dismissed as an abuse of process.

The plaintiff, former interim Commissioner of the OPP, brought a defamation action against the Premier of Ontario over public statements alleging the plaintiff breached the Police Services Act.

The defendant moved to dismiss the action under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The court granted the motion, finding that the defendant's expression related to a matter of public interest, the plaintiff could not show that the defence of fair comment had no real prospect of success, and the public interest in protecting the expression outweighed the public interest in permitting the action to continue.

The appellants, who own and manage the majority of units in a condominium operating as a retirement residence, appealed a summary judgment finding their conduct oppressive under s. 135 of the Condominium Act.

The motion judge found the appellants unfairly prejudiced the respondent minority unit owners by not requiring their own tenants to sign the standard services agreement, allowing the appellants to offer discounted services and gain an unfair marketing advantage.

The Court of Appeal upheld the oppression finding and the costs award, but varied the judgment to ensure it only applied prospectively so as not to affect the rights of current tenants who were not parties to the action.

The moving party Plaintiffs ("AFEX") sought a continuation of an ex parte Mareva injunction against the Defendants (MBM Trading, Mendel Streicher, and Emmeco Inc.).

AFEX's claim arose from six USD wire transactions totaling over $845,000 that were initiated by MBM but subsequently rejected by MBM's financial institutions due to insufficient funds or frozen accounts.

The court found a strong prima facie case of fraud, inferring that Streicher knew or was wilfully blind to the frozen status of his accounts when initiating the transactions.

The court rejected the Defendants' arguments regarding jurisdiction and the absence of a signed account agreement, finding that the parties' conduct implied an agreement to Ontario jurisdiction and that a mediation clause did not preclude urgent interlocutory relief.

The court also found a serious risk of asset dissipation, noting Streicher's lack of transparency regarding the use of AFEX funds and his rapid repayment of other creditors.

The Mareva injunction was continued, and the MBM Defendants were ordered to provide a sworn statement of worldwide assets and submit to examinations.

The appellant, a lawyer, sued the respondents (a law firm and individuals) for alleged breach of solicitor-client privilege.

The respondents successfully moved to strike the action based on issue estoppel, a decision the appellant appealed.

The Court of Appeal dismissed the appeal, affirming that the three-part test for issue estoppel was met.

The Master in an earlier, unrelated proceeding had squarely addressed and decided the privilege issue, finding it waived, and that decision was final due to the appellant's withdrawal of the appeal.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.

This is a costs endorsement following a motion where the Au Defendants successfully sought the removal of the plaintiff's lawyers but were unsuccessful in obtaining production of litigation files.

The Au Defendants sought substantial indemnity costs, arguing the motion was avoidable.

The plaintiff opposed substantial indemnity and sought a reduction in partial indemnity costs.

The court found no basis for substantial indemnity costs, noting that declining voluntary withdrawal or opposing the motion did not constitute reprehensible conduct.

It acknowledged divided success but emphasized the Au Defendants' primary success.

The court awarded the Au Defendants $22,000 in partial indemnity costs.

Additionally, Clark Peddle, a non-moving defendant, was awarded $1,000 in costs for his Rule 39.03 examination, which was deemed largely irrelevant to the motion's disposition and unopposed by the plaintiff.

The defendants brought a motion to strike the plaintiff's statement of claim under Rule 21, arguing it was an abuse of process and barred by issue estoppel.

The plaintiff, a lawyer, sued the defendants for allegedly breaching solicitor-client privilege during a previous proceeding.

The court found that the issue of privilege and waiver had already been decided against the plaintiff in the prior proceeding by a Master.

Applying the test for issue estoppel, the court concluded the action was an impermissible collateral attack and struck the claim without leave to amend.

The plaintiffs, individual unit owners in a retirement condominium, brought a motion for summary judgment claiming the defendants acted oppressively.

The defendants, who owned the majority of the units, managed the condominium, and provided services, were not requiring their own tenants to pay the mandatory service fees that the plaintiffs were required to pay under the condominium declaration and bylaws.

The court found that the defendants' conduct was unfairly prejudicial and unfairly disregarded the plaintiffs' interests, as it violated their reasonable expectation that all occupants would be treated equally.

The court ordered that the declaration and bylaws be enforced, requiring all occupants to enter into the same services agreement, but declined to award damages or alter the board's composition.

The plaintiff real estate brokerage brought a motion for summary judgment seeking $187,500 in commission from the defendant for an alleged breach of a Buyer Representation Agreement.

The defendant opposed the motion and maintained a counterclaim for damages, alleging the agreement was incomplete when signed and backdated.

The court found significant contradictory evidence regarding the execution and terms of the agreement, concluding there were genuine issues requiring a trial.

The motion for summary judgment was dismissed, as the use of enhanced fact-finding powers would not be in the interests of justice.

The respondent Anthony Novac and third-party respondents (collectively "Novac/Sonco") brought motions for a preservation order and security for costs, respectively, against the applicant Jennifer Ann Leitch.

These motions followed a prior judgment where Leitch was ordered to pay significant costs.

Anthony sought a preservation order for Leitch's assets, including the Caledon farm property, and alternatively, its transfer to him based on a trust claim.

Novac/Sonco sought security for costs and preservation of the farm and artwork.

Leitch opposed, wishing to sell the farm and arguing against priority for creditors and lack of grounds for a Mareva injunction.

The court dismissed Anthony's request for the farm's transfer but granted the preservation orders for the farm and artwork in Leitch's possession, finding that Leitch's financial circumstances and prior unreasonable conduct justified securing the substantial costs awards.