Hailey Eden Abramsky

This decision concerns the interpretation of a contingency fee retainer agreement between Aylmer Meat Packers Inc. and Richard Walter Clare (the "Client") and their former law firm, Harrison Pensa LLP ("HP").

The court found that HP was not entitled to a contingency fee on a judgment obtained by the Client on appeal after new counsel was retained.

The agreement only entitled HP to a contingency fee on damages recovered prior to or at trial.

The court also rejected HP’s claim for compensation under quantum meruit, holding that the enforceable agreement governed the parties’ rights and obligations.

This endorsement addresses two motions arising from a cybertheft of approximately $9.7 million from the applicant's bank account at the respondent bank.

The applicant, FACTOR, sought additional productions from the Bank of Nova Scotia (BNS), alleging a parsimonious approach to disclosure.

BNS, supported by other respondents, sought to convert the application into an action, citing material facts in dispute and complex issues.

The court largely granted FACTOR's production requests, ordering BNS to provide more details from its internal investigation, session logs (with confidentiality), and internal alert system details (with a secure mechanism).

The court also ordered the additional respondents, James Campagna and 10426377 Canada Inc., to produce all relevant documents.

The motion to convert the application to an action was dismissed as premature, with the court noting that the necessity of conversion could be revisited once the respondents deliver their full evidence.

This is an appeal by the defendants from an Associate Justice's order that dismissed their request to strike certain paragraphs from the Statement of Claim.

The impugned paragraphs alleged bad faith contractual performance by the defendants, specifically referencing an alleged campaign to damage the plaintiff, including encouraging a false accusation of sexual assault, following the plaintiff's departure from their accounting firm.

The defendants also sought to strike paragraphs related to "departure negotiations" on the basis of settlement privilege.

The court dismissed the appeal, affirming that the allegations of bad faith contractual performance were viable under Bhasin v. Hrynew and that the correspondence regarding departure negotiations was not presumptively privileged without evidence of intent to settle.

The appellants appealed a motion judge's order that set aside a solicitor's account assessment order as statute-barred and ordered payment of outstanding fees.

The Court of Appeal upheld the motion judge's finding that all accounts were final and that the first 29 paid accounts were statute-barred.

However, the Court found legal errors in the motion judge's analysis regarding the last three unpaid accounts.

It clarified that special circumstances are not required for assessment of unpaid accounts sought between one and 12 months after delivery, and that Section 3(a) of the Solicitors Act applies to accounts not yet delivered at the time of requisition, thus having no limitation period.

The appeal was allowed in part, referring the last three accounts for assessment.

The respondent law firm moved to set aside an assessment order obtained by the applicants, arguing it was statute-barred, and sought payment of outstanding legal fees.

The applicants cross-moved for an assessment of all 32 accounts rendered over a four-and-a-half-year retainer.

The central issue was whether the accounts were "interim" or "final" for the purpose of limitation periods under the Solicitors Act.

The court found that the accounts were final, based on the parties' intention, regular payment without complaint, and the nature of the billing.

The court concluded that the assessment order was statute-barred and ordered the applicants to pay the outstanding legal fees.

The defendants brought a motion to strike various paragraphs from the plaintiff's statement of claim, alleging they were prejudicial, scandalous, frivolous, vexatious, or an abuse of process.

The plaintiff's action arose from his acrimonious departure from an accounting partnership, seeking an accounting, declarations of bad faith and oppressive conduct, and damages.

The motion sought to strike paragraphs related to a request for trial together with a civil assault action, allegations of reprisal and false sexual assault claims, a complaint filed with CPA Ontario, and the nature of departure negotiations.

The court dismissed the motion to strike paragraphs concerning the request for trial together and the reprisal/assault allegations, finding they could support a claim for breach of the duty of good faith.

However, the court granted the motion in part regarding the CPA Ontario complaint, striking those references due to inadmissibility under the CPA Ontario Act and public policy protecting regulatory complaints.

The motion to strike paragraphs on departure negotiations was also dismissed, as the defendants failed to prove settlement privilege and the allegations could support a breach of contract claim.

Due to mixed success, each party was ordered to bear their own costs.

The defendants (Trinity Development Group Inc., Trinity Albert LP, and John Ruddy) brought a motion to compel Capital Sports Management Inc. (CSMI) and Eugene Melnyk to produce documents related to the work of Gowling WLG LLP for RendezVous LeBreton Group (RLG) and the LeBreton Project.

Trinity argued that Gowlings was jointly retained by CSMI and Trinity in relation to the RLG joint venture, or that common interest privilege applied, or that CSMI had waived privilege.

CSMI contended that Gowlings acted solely for CSMI.

The court found that a joint retainer existed between Gowlings, CSMI, and Trinity for the RLG and LeBreton Project from July 23, 2015, to November 23, 2018, based on objective evidence including Gowlings' representation of RLG to third parties, shared instructions, and shared payment of fees.

The court also noted that CSMI's pleading of a fiduciary relationship with Trinity was inconsistent with its claim of privilege.

The motion to compel production was granted, requiring CSMI to produce the requested documents in unredacted form.

The plaintiff moved to set aside a registrar's order dismissing his action for delay, nearly four years after the dismissal.

The court applied the established principles for setting aside such orders, requiring a reasonable explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and rebuttal of prejudice.

The court found no reasonable explanation for the delay, no evidence of inadvertence by the former lawyer, and significant prejudice to the defendants due to the passage of nearly a decade since the incident, impacting witness recollection and the ability to defend.

While the motion was brought promptly after the plaintiff's new counsel discovered the dismissal, the overall delay and resulting prejudice outweighed the plaintiff's plea for indulgence, upholding the principle of finality.

The motion was dismissed.