Ian McKellar

The appellant lawyer appealed a decision of the Law Society Tribunal's Appeal Division, which upheld a Hearing Division finding of professional misconduct and a $200,000 costs award.

The misconduct related to the appellant's inadequate preparation of Personal Information Forms for Hungarian Roma refugee claimants and his failure to adequately supervise his staff.

The Divisional Court dismissed the appeal, finding that the Appeal Panel reasonably concluded the Hearing Panel's findings of fact, credibility assessments, and costs award were supported by the evidence and fell within a range of reasonable outcomes.

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.

Following a motion to strike where the defendants were largely successful, the court determined the issue of costs.

The defendants had successfully struck the plaintiff's claims of negligent investigation without leave to amend, and malicious prosecution and misfeasance in public office with leave to amend.

Applying the normative approach to costs and the overriding principle of reasonableness, the court ordered the plaintiff to pay the defendants' partial indemnity costs fixed at $5,000.

The defendants brought a motion to strike the plaintiff's amended Statement of Claim, seeking dismissal of the action.

The plaintiff's claim asserted causes of action for negligent investigation, malicious prosecution, and misfeasance in public office, stemming from disciplinary proceedings by the Law Society of Upper Canada that initially revoked his license but were later set aside on appeal.

The court struck the negligent investigation claim without leave to amend, finding it disclosed no reasonable cause of action due to the Law Society's immunity from negligence in good faith performance of its duties.

The claims for malicious prosecution and misfeasance in public office were struck with leave to amend, as they lacked the full particulars of malice and bad faith required by Rule 25.06(8).

The court refused to dismiss the action as an abuse of process, determining that the plaintiff was not attempting to re-litigate issues already decided by the Law Society Appeal Division.

The applicant estate trustee sought directions on whether the respondent's claim against the estate for $150,000, pursuant to a separation agreement, was statute-barred.

The deceased had failed to maintain life insurance as required, creating a first charge on the estate.

The estate trustee withheld information from the respondent that the life insurance policies had lapsed, delaying the respondent's discovery of her claim.

The court held that while the two-year limitation period under s. 38 of the Trustee Act applied, it was tolled by the doctrine of fraudulent concealment due to the estate trustee's unconscionable conduct in withholding material facts.

The respondent's claim was therefore permitted to proceed.