J. David Sloan

On appeal from a Superior Court order, the Court of Appeal addressed competing costs claims arising from a legal fee assessment and subsequent application.

The appellants sought to set aside costs awards totalling $56,535.29 granted to the respondent, arguing that the appellants' $10,000 costs award on the successful appeal disposed of all costs in the proceedings.

The respondent maintained entitlement to both awards based on her substantial success in reducing the appellants' original account from $187,044.40 to $100,000.

The Court of Appeal found the respondent achieved substantial success warranting appropriate costs awards, but modified the amounts to reflect the nature and extent of success at each stage.

An appeal from a Superior Court order that set aside an Assessment Officer's Report and Certificate reducing a solicitor's account from $149,635.52 to $26,375.00.

The solicitor had billed for services related to a $14 million real estate transaction without maintaining proper time dockets or obtaining client authorization before withdrawing fees from the client's trust account.

The Court of Appeal allowed the appeal, finding that the application judge erred in finding bias against the Assessment Officer and in failing to apply the proper quantum meruit analysis.

The Court reassessed the account at $100,000, holding that while the solicitor's record-keeping deficiencies warranted a significant reduction, the application judge's mechanical hourly rate calculation failed to account for the complexity, importance, and successful outcome of the transaction.

The appellants appealed a Superior Court judgment upholding a mortgage enforcement action.

The appellants admitted the mortgage debt but argued that their financial difficulties preventing payment were caused by improper actions of their former lawyer regarding the placement of the mortgage.

The Court of Appeal found no evidence linking the lawyer dispute to the respondent mortgagees' conduct and noted that the dispute concerned only approximately $40,000 of the mortgage proceeds used to discharge writs.

The appellants offered no reasonable explanation for how resolving the lawyer claim would enable payment of the approximately $830,000 owing under the mortgage.

The court found no equitable basis to prevent mortgage enforcement and dismissed the appeal.

The third party, Mortgage Alliance Company of Canada Inc. (MA), moved for summary judgment to dismiss a third party claim brought by the defendant, Stephen Tzaras.

Stephen Tzaras had fraudulently transferred property and obtained a mortgage, leading to a cross-claim against him for fraud.

Stephen Tzaras then brought a third party claim against MA, alleging that MA's employee aided the fraudster and that MA failed to supervise its employee.

MA argued that Stephen Tzaras's claim was barred by issue estoppel, res judicata, or the defence of ex turpi causa.

The court dismissed MA's motion, finding that issue estoppel and res judicata did not apply as the issues in the cross-claim and third party claim were distinct, and the third parties were not involved in the prior summary judgment motion.

The court also held that ex turpi causa did not prevent a claim for contribution and indemnity from fellow fraudsters, distinguishing it from claims seeking to profit from illegal acts.

The plaintiff, an elderly widow, sought to set aside two property transfers that gave her son, the defendant, an interest in her home property.

The plaintiff alleged she did not understand the nature of the documents she signed and was subject to undue influence.

The defendant counterclaimed for an interest in the property based on unjust enrichment and proprietary estoppel, citing his contributions to expanding a workshop on the property.

The court found the transfers void due to non est factum, mistake, and undue influence, restoring the plaintiff as sole owner.

The defendant's counterclaim was dismissed because he did not come to the court with clean hands, having engaged in unconscionable conduct by secretly transferring the property and refusing to return it.

The plaintiff, an Ontario resident, was injured during an ATV excursion while on vacation in Mexico.

She brought an action in Ontario against the operator of the excursion and the hotel where she was staying.

The hotel brought a motion to stay the action on the basis that the Ontario court lacked jurisdiction.

The court applied the Van Breda test and found that none of the presumptive connecting factors were present, specifically concluding that the hotel did not carry on business in Ontario either directly or through an agent.

The motion to stay the action was granted.