Jeffrey Silver

The applicants brought a motion to set aside a summons to witness issued to their counsel, Leo Klug.

The respondent sought to examine Mr. Klug on a pending motion to remove him as counsel of record, alleging he failed to advise the court of an agreement to adjourn a previous motion and proceeded in the respondent's absence.

The court dismissed the applicants' motion, finding this was a rare situation where examining opposing counsel was justified, as Mr. Klug was the only person who could provide necessary and material evidence regarding his conduct in court.

The parties settled an eight-year litigation regarding custom-built moulds.

Following the settlement, the defendants brought a motion for contempt alleging the plaintiff violated interlocutory orders by improperly storing two moulds outdoors, causing them to deteriorate.

The plaintiff brought a motion to strike the contempt motion.

The court granted the motion to strike, finding the underlying orders did not mandate any specific storage method and the contempt motion was a frivolous and vexatious attempt to re-litigate the settled action.

Following earlier reasons on multiple discovery-related motions, the court was required to determine the quantum of costs payable.

The defendants had been largely successful on the underlying refusals and undertakings motion and sought over $70,000 in costs.

The court considered the principles under Rule 57 of the Rules of Civil Procedure and the discretion under s. 131 of the Courts of Justice Act, including the complexity of the proceeding, the conduct of the parties, and settlement offers exchanged prior to the motion.

Concluding that the claimed amount was excessive and that the litigation had already consumed disproportionate time and resources, the court adopted a broad‑strokes approach to fixing costs.

Net costs were fixed in a significantly reduced amount payable by the plaintiff.

The defendants brought a motion seeking leave to issue a third party claim for contribution and indemnity against a non-party alleged to have provided instructions during prior litigation involving the plaintiff.

The court considered the interaction of the Limitations Act, 2002, the Negligence Act, and the Rules of Civil Procedure governing third party claims.

While the proposed claim disclosed an arguable basis for contribution and indemnity, the court held that contribution cannot be sought in respect of alleged breaches of fiduciary duty owed directly by counsel to a client.

Leave was granted to issue the third party claim, but only after amendment removing any claim for contribution or indemnity relating to fiduciary duties.

Service of the third party claim was permitted by publication due to the unknown whereabouts of the proposed third party.