Ian McKellar

The appellant contested the denial of statutory accident benefits following a 2010 automobile accident, bringing simultaneous proceedings before the Divisional Court by way of statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law.

The courts below held that, where there is a limited statutory right of appeal, judicial review should only be exercised in exceptional or rare cases.

The Supreme Court of Canada held this was an error: a circumscribed statutory right of appeal on questions of law does not restrict the availability of judicial review on questions of fact or mixed fact and law, and the Strickland framework does not support imposing a heightened threshold for judicial review in such circumstances.

The Court further found that the LAT adjudicator's reconsideration decision was unreasonable because he failed to consider the effect of the reinstatement of income replacement benefits on the validity of the initial denial and failed to have regard to relevant tribunal jurisprudence on the point.

The appeal was allowed and the matter remitted to the LAT adjudicator for reconsideration.

The defendants brought a motion for summary judgment to dismiss an action concerning the interpretation of a centralized health and benefits trust deed.

The plaintiffs, a local union and three of its members, sought an order that the trust wrongly denied them an annual open enrollment window for benefits, which they argued was guaranteed by their prior local collective bargaining agreement and incorporated into the centralized trust.

The court found that the trust deed, read in its grammatical sense and as a whole, and consonant with the purpose of the collective bargaining regime, did not require the continuation of the annual open enrollment window.

The court emphasized the trustees' duty of prudence in adopting industry standards to minimize "anti-selection" risk.

The motion for summary judgment was granted, dismissing the plaintiffs' claim.

The defendants brought motions seeking to remove the plaintiffs' counsel, Julian Falconer and Falconers LLP, and for the production of portions of their file concerning advice given to plaintiff Bradley Blair regarding a complaint to the Ombudsman and a related judicial review application.

The defendants argued that counsel was a potential witness, an "unsworn witness," or had a conflict of interest based on a duty of loyalty, and that solicitor-client privilege had been waived.

The court dismissed both motions, finding no deemed waiver of privilege, no likelihood of counsel being a material witness, no "unsworn witness" concern given the nature of prior interactions, and no duty of loyalty conflict.

Following the dismissal of the respondent's motion to set aside an undefended trial decision and the granting of the Law Society's request to transfer an action, the court determined costs.

The court rejected the respondent's argument that costs could not be awarded without formal motion records.

The court declined to award costs personally against the respondent's counsel to avoid further delay.

However, the court awarded substantial indemnity costs against the respondent, finding his conduct constituted an abuse of process designed to complicate and delay the proceedings.

Costs were fixed at $3,987.77 for the Law Society and $12,500.00 for the applicant.

The appellant sought judicial review and appealed a decision of the Licence Appeal Tribunal (LAT) which found her accident benefits claim statute-barred.

The Divisional Court dismissed both, stating judicial review was only available in "exceptional circumstances" given the statutory appeal right.

The Court of Appeal dismissed the further appeal, clarifying that while judicial review is always available, it is a discretionary remedy and will only be exercised in rare cases where alternative remedies (like reconsideration and statutory appeal) are inadequate.

The Court affirmed the LAT's finding on the limitation period as reasonable and provided guidance on handling concurrent appeal and judicial review proceedings.

The plaintiff brought a motion for leave to amend her Amended Statement of Claim in a solicitor's negligence action, seeking to add allegations of litigation misconduct by the defendants' counsel.

The proposed amendments related to the handling and delivery of client files.

The court found the motion premature due to its overlap with a "Label Motion" and ongoing judicial case management concerning the same alleged misconduct.

The court adjourned the pleadings motion to a case conference to clarify the status of the related motions and case management, reserving costs.

The defendants, former truck drivers, brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a lawsuit by the plaintiff trucking company for defamation, trespass, and other torts.

The lawsuit arose from protests and online comments alleging unpaid wages.

The court dismissed the defendants' motion, finding that their expressions, which included calling the plaintiffs "thieves" and disrupting business, were primarily a private collection dispute aimed at circumventing ongoing legal processes (Canada Labour Code complaints), rather than a matter of genuine public interest.

The applicant father sought to enforce Letters Rogatory and a subpoena issued by a Florida court against several Ontario lawyers who had represented his ex-wife and daughter in previous family law proceedings.

The Florida action sought damages for interference with parental rights.

The Superior Court of Justice dismissed the application on public policy grounds, holding that the underlying cause of action is forbidden in Canada and that enforcing the subpoena would violate solicitor-client privilege and confidentiality.

The defendants, a criminal defence lawyer and his firm, brought a motion to strike the self-represented plaintiff's statement of claim.

The plaintiff had previously filed complaints against the defendants with the Human Rights Tribunal of Ontario and the Law Society of Ontario after the lawyer removed himself from the record in the plaintiff's criminal proceedings.

The court found the action was not an abuse of process or vexatious, as the administrative complaints were not decided on their merits.

However, the court struck the statement of claim in its entirety under Rule 25.11, finding it contained irrelevant, inflammatory allegations and failed to plead necessary legal elements.

The plaintiff was granted leave to amend.

The plaintiffs sought to vary the terms of a formal order resulting from a previous endorsement, specifically regarding the restriction of an amended statement of claim to 'the Estate’s claim of negligent legal advice from the Defendant.' The court clarified that such a request constituted a motion to vary the endorsement, not merely an appointment to settle the order under Rule 59.04(12).

The court held the Registrar-signed order in abeyance and granted the plaintiffs 30 days to serve a formal Notice of Motion to vary the endorsement.

The defendant moved to dismiss the action for abuse of process, arguing that the plaintiffs' claims for negligent legal advice were estopped by a prior judgment enforcing a settlement.

The court found that the claims brought by the family members of the deceased were indeed estopped, as the prior judgment had conclusively determined the reasonableness and providence of the settlement for them, including infant plaintiffs under Rule 7.08.

However, the Estate's claim for negligent legal advice regarding its own compensation (or lack thereof) was not estopped, as this specific issue was not integral to the prior judgment and had been explicitly left open by the previous judge.

The Statement of Claim was struck with leave to amend to proceed solely with the Estate's claim.

Supplementary reasons to an appeal of an order striking the appellant's fresh as amended statement of claim.

The respondents requested the court re-open the appeal and withdraw, alter, or modify its decision, arguing the court misapprehended the timing of the demand for particulars, the history of the bankruptcy proceeding, and conflated oral submissions with pleading content.

The court rejected the second and third arguments and, while acknowledging the respondents' point regarding the timing of the demand for particulars, declined to re-open the appeal as it was not in the interests of justice and the result would have been the same.

The appellant appealed the motion judge's order striking his fresh as amended statement of claim without leave to amend and dismissing his action for malicious prosecution and misfeasance in public office against the Law Society of Ontario and four individuals involved in investigations and proceedings concerning the appellant over 15 years.

The motion judge found the appellant had failed to provide sufficient particulars of improper purpose or ulterior motive as required by the Rules of Civil Procedure.

The Court of Appeal allowed the appeal in part, finding the appellant had sufficiently pleaded the elements of both torts through his pleadings and response to the demand for particulars, except as to one respondent against whom no particulars were provided.

The court dismissed the appellant's motion to admit fresh evidence and vacated the costs order, awarding the appellant partial costs of the appeal.

The appellants appealed a summary judgment order dismissing their action against their former lawyer for professional negligence.

The appellants alleged the respondent failed to protect their interests in settlement negotiations, failed to account for funds paid towards legal bills, and misappropriated funds secured by a mortgage.

The motion judge found the appellants had put forward no evidence to support their claims, that they were fully informed of and agreed to the settlement terms which benefited them, and that there was no evidence of inappropriate or excessive billings.

The Court of Appeal upheld the dismissal, finding no genuine issue for trial and rejecting all three grounds of appeal raised by the appellants.

The plaintiff, Drake Holdings Ltd., brought a motion seeking a declaration that four inadvertently disclosed documents were solicitor-client privileged and an order removing the defendant's counsel, Lerners LLP.

The defendant, Chubb Insurance Company of Canada, argued that the documents were not privileged, or that privilege was waived, and opposed counsel's removal.

The court found the documents were privileged and that privilege was not waived or lost.

While acknowledging a presumption of prejudice, the court determined that remedies short of removing counsel were sufficient to protect the privilege, including orders for the return/deletion of documents, an undertaking from counsel not to relay information, and a prohibition on counsel conducting examinations of the plaintiff's witnesses.

Following a successful motion by the defendants to stay the action and set aside service on the basis that Ontario lacked jurisdiction, the parties made written submissions on costs.

The defendants sought partial indemnity costs of $16,895.58, which the plaintiff largely left unchallenged.

The court found the claimed fees and disbursements to be fair, reasonable, and proportional, and awarded the defendants their requested costs in full.

The defendants brought a motion under Rule 21 to strike the plaintiff's amended statement of claim, which alleged malicious prosecution and misfeasance in public office arising from Law Society disciplinary proceedings.

The court found that the amended claim failed to provide the necessary particulars of improper purpose or ulterior motive, repeating the same bald and conclusory statements that led to a previous version of the claim being struck.

The court granted the motion, struck the amended claim without leave to amend, and dismissed the action with costs.

At a case conference, the plaintiffs objected to the defendant serving a supplementary motion record for an upcoming summary judgment motion, arguing it breached a consent timetable and Rule 39.02(2).

The court found Rule 39.02(2) did not apply because no cross-examinations had taken place.

However, the court agreed the plaintiffs had the right to respond to the new material and cross-examine on it, necessitating an adjournment of the summary judgment motion to a new date.

The appellant appealed a motion judge's decision striking his claim for negligent investigation against the Law Society of Upper Canada.

The motion judge relied on section 9 of the Law Society Act, which provides statutory immunity for actions against Law Society officials and, by extension, the Law Society itself.

The appellant argued that Edwards v. Law Society of Upper Canada had been superseded by Hill v. Hamilton-Wentworth Police Services Board, which established the tort of negligent investigation.

The Court of Appeal dismissed the appeal, holding that the statutory immunity in section 9 of the Law Society Act remains binding and that Hill did not operate to extinguish such immunity.

The court also noted that only a five-judge panel could revisit the binding precedent of Edwards, which the appellant did not seek.

The plaintiff, Tarion Warranty Corporation, brought a motion to restore its action to the trial list and for a timetable, after the action was due to be dismissed for delay.

The court applied the two-part test requiring an acceptable explanation for the delay and no non-compensable prejudice to the defendants.

The court found the plaintiff provided an acceptable explanation, citing the complexity of the construction claim, extensive discovery, and the necessity of resolving a related action (the 1592 action) before fully particularizing damages.

The court also found no specific evidence of non-compensable prejudice from the opposing defendants, despite a strong presumption of prejudice due to the delay.

The motion was granted, restoring the action to the trial list and setting a timetable for future steps.