John Hardy McNair

The plaintiff, a lawyer, brought an action against his former legal counsel for negligence and breach of contract arising from their representation of him in a civil action commenced by his son.

The underlying dispute involved tax liability for an estate.

The plaintiff alleged the defendants failed to follow instructions, failed to promptly pursue a motion for security for costs, and failed to seek an order for subrogation or carriage of the tax proceedings.

The court dismissed the action, finding that the defendants followed the plaintiff's instructions and that the plaintiff failed to establish a breach of the standard of care, noting the fatal absence of expert evidence.

The court further held that even if negligence or breach of contract had been established, the plaintiff failed to prove any resulting loss, damage, or loss of chance.

The applicant father sought to rectify a Declaration of Trust concerning a 100-acre farm, arguing that he and his deceased son were mistakenly reversed as 'Trustee' and 'Beneficiary' by the drafting lawyer.

The respondent widow, acting as estate trustee, brought a cross-application to uphold a severance of the joint tenancy she executed under a power of attorney before the son's death.

The court applied the Fairmont Hotels test and found a mutual mistake, rectifying the Declaration of Trust to show the father as the beneficiary.

Consequently, the court set aside the severance of the joint tenancy and ordered the land registry rectified to show the father as the sole owner by right of survivorship.

The plaintiff corporation brought an action for solicitor negligence against the defendant lawyer and his firm, alleging they owed and breached duties to the plaintiff in relation to a 2010 real estate transaction, causing the plaintiff to lose financing it had extended.

The transaction involved mortgage fraud perpetrated by the purchaser and his partner.

The court dismissed the action, finding that the defendant lawyer did not owe a duty of care to the plaintiff, either through a solicitor-client relationship or as an exceptional duty to a non-client third party, as there was no retainer, no instructions, and no reasonable reliance by the plaintiff on the lawyer.

The plaintiff, Azmoon Trading Inc., sought to alter a previous costs award in favour of the defendants, Caffe Demetre Franchising Corp. et al., following the dismissal of an injunction motion.

Azmoon Trading argued that costs should be borne by each party due to similar incurred costs and ongoing litigation, and challenged specific disbursements related to the defendants' counsel retaining lawyers from London, Ontario.

The court confirmed the original costs award of $41,670.61 to Caffe Demetre, finding that the successful party is presumptively entitled to costs, and that retaining counsel from a different municipality, even if it incurs additional travel disbursements, is generally permissible and reasonable if the overall costs are fair.

Following the dismissal of the plaintiff's motion for an injunction to prevent the termination of its franchise, the defendants sought their costs.

The court reviewed the parties' offers to settle and the defendants' cost outline.

Finding the time spent and rates charged to be reasonable, the court awarded the defendants their partial indemnity costs fixed at $41,670.61.

The applicant health unit sought to relocate its headquarters by entering into a new lease.

The respondent County, which was the applicant's current landlord and an unsuccessful bidder for the new location, refused to consent to the lease under s. 52(3) of the Health Protection and Promotion Act.

The court determined that a lease constitutes 'holding real property' under the Act, thus requiring municipal consent.

However, the court set aside the County's refusal, finding it was made in bad faith and with a reasonable apprehension of bias due to the County's direct financial interest in keeping the applicant as a tenant.

The plaintiff franchisee sought an interlocutory injunction to prevent the defendant franchisor from acting on a notice terminating the franchise agreement.

The termination followed a dispute over the scope and cost of renovations required for a final five-year renewal.

Applying the RJR McDonald test, the court found a serious issue to be tried but concluded the franchisee failed to establish irreparable harm, as damages would be an adequate remedy and the franchise term was nearing its absolute end.

The balance of convenience also favoured the franchisor, partly because the franchisee failed to provide an undertaking as to damages.

The motion for an interlocutory injunction was dismissed.

The plaintiff, The Canada Trust Company, Trustee, brought a motion under Rule 37.14 to set aside a Registrar's dismissal order from May 3, 2013, which administratively dismissed the action for delay.

The court applied the four-pronged Reid test, considering the explanation for delay, inadvertence in missing the deadline, promptness of bringing the motion, and prejudice to the defendants.

While the court found the missed deadline was inadvertent, it determined that the plaintiff failed to adequately explain the full extent of the delay and did not bring the motion promptly.

Crucially, the court found significant non-compensable prejudice to the defendants, Boulos and Henriette Daher, due to the inordinate passage of time, the nature of their *non est factum* defence relying on faded memories, and their declining health, which rendered them unfit to participate in trial.

The motion to set aside the dismissal was therefore dismissed.

Following the dismissal of the plaintiffs’ action on a summary judgment motion, the successful defendants sought costs.

The plaintiffs argued that no costs should be awarded due to financial hardship and requested that any costs order include limited monthly payments and enforcement restrictions.

The court reviewed the principles governing costs under s. 131 of the Courts of Justice Act and authorities addressing whether impecuniosity should influence a costs award.

The court held that economic hardship did not justify departing from the general rule that costs follow the event and found the plaintiffs’ claims to be ill‑conceived.

Costs were awarded to the defendants, including a reduced amount for one defendant who retained separate counsel shortly before the motion hearing.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' negligence action.

The plaintiffs, who were shareholders of a corporation, alleged that the defendants negligently terminated a contract with the corporation, causing the plaintiffs personal financial losses, including the loss of a U.S. work permit and a real estate deposit.

The court granted the motion and dismissed the action, finding that the claims were precluded by the rule in Foss v. Harbottle, as shareholders cannot sue for wrongs done to the corporation.

Furthermore, the court held that the defendants owed no duty of care to the plaintiffs due to a lack of proximity and foreseeability, and the claims for pure economic loss did not fall within recognized legal categories.

The appellants appealed a summary judgment dismissing their third party claim against a law firm and its partner, as well as the associated costs order.

The Court of Appeal upheld the motion judge's findings that the pleadings did not properly allege conspiracy against the respondents and that the respondents owed no duty of care to the appellants, who were non-clients and opponents in litigation.

However, the Court allowed the costs appeal in part, finding the motion judge erred in principle by awarding partial indemnity costs equal to the full amount of actual costs paid, and reduced the costs award by one third.

The franchisor sued the franchisees for breach of contract, and the franchisees counterclaimed for rescission of the franchise agreement under s. 6(2) of the Arthur Wishart Act, alleging the franchisor failed to disclose ongoing litigation against a competing business.

The motion judge granted partial summary judgment dismissing the rescission claim, finding the undisclosed litigation was not a stark and material deficiency.

The Court of Appeal dismissed the franchisees' appeal, holding that summary judgment was appropriate and that the litigation, which was commenced to protect franchisees, was not a material fact and its omission did not amount to a complete failure to provide a disclosure document.

The plaintiff moved to set aside a registrar's order dismissing the action for delay.

The delay was largely attributed to the plaintiff's former counsel, who had been caring for her terminally ill husband and inadvertently missed the deadline to set the action down for trial.

The court applied the Reid criteria contextually, finding that while the delay was not fully explained, it was due to inadvertence rather than contumacious conduct.

The court also found the defendants suffered no significant prejudice, noting that their destruction of relevant files shortly after the dismissal was a self-inflicted wound.

The motion was granted, the dismissal order was set aside, and the plaintiff was awarded costs of $15,000.

The respondent moved to vary a judgment of the Court of Appeal awarding $8,000 in costs to the appellant following a successful appeal to set aside an administrative dismissal.

The respondent argued that costs should not follow the event because it was not at fault for the delay, and that it had not agreed to the $8,000 quantum.

The Court of Appeal dismissed the motion, noting that the digital recording confirmed the respondent's counsel had agreed to the quantum, and found no reason to depart from the usual rule that costs follow the event.

The appellant appealed from a motion judge's refusal to restore an action that had been dismissed for delay by the registrar.

The Court of Appeal found that the registrar had no jurisdiction to dismiss the action because the 90-day period following the status notice had not elapsed.

Furthermore, the motion judge erred in finding prejudice to the respondent based on the disposal of a fuel tank prior to the dismissal, as this was not prejudice arising from the dismissal itself.

The appeal was allowed, and the registrar's dismissal order was set aside.

A bankruptcy trustee brought a motion to set aside the bankrupt’s automatic discharge after failing, through inadvertence, to send the statutory notices of impending discharge to creditors.

The court considered whether it had jurisdiction under the Bankruptcy and Insolvency Act to invalidate an automatic discharge arising from such procedural irregularity.

Applying prior authorities and the principles under s. 187(9) of the Act, the court held that the failure to provide notice constituted an irregularity in a bankruptcy proceeding causing potential injustice to creditors who were deprived of the opportunity to oppose the discharge.

Evidence indicated unresolved issues concerning the bankrupt’s disclosure obligations and potential surplus income, suggesting that a discharge hearing could lead to a materially different result.

The court therefore set aside the automatic discharge and directed the trustee to issue proper notices to creditors.

The appellant challenged an order refusing to set aside a Registrar’s administrative dismissal of the action for delay.

The Court of Appeal held that the motion judge applied the correct legal test and that no palpable and overriding error was shown in the exercise of discretion.

The court also found the explanation for the very significant delay in bringing the motion after the administrative dismissal to be unsatisfactory.

The appeal was dismissed with fixed costs to the respondents.

The defendants brought a motion to set aside a noting in default and a subsequent default judgment of over $1.1 million.

The plaintiff had obtained the default judgment without notifying the defendants, despite ongoing settlement discussions and an earlier agreement to hold the action in abeyance pending a jurisdictional challenge.

The court found that the defendants moved promptly upon learning of the judgment, adequately explained the default as resulting from a reasonable belief that the action was in abeyance, and demonstrated an arguable defence on the merits regarding the termination of the distributorship agreement.

The motion was granted and the default judgment was set aside.

The plaintiff brought a motion to set aside a Registrar’s administrative dismissal of an action for delay under Rule 48.14 of the Rules of Civil Procedure.

The action had previously been stayed by court order under s. 7(1) of the Arbitration Act, 1991 in favour of arbitration pursuant to a contractual arbitration clause.

The court held that a judicial stay places the proceeding in suspended animation such that the parties cannot take further procedural steps and the administrative timelines under Rule 48.14 cannot operate.

The Registrar therefore lacked jurisdiction to issue a status notice and dismissal order while the action remained stayed.

The administrative dismissal and resulting certificate of assessment of costs were set aside and the action remained stayed pending arbitration.

The applicants sought judicial review of an interlocutory decision by the Coroner refusing to issue a summons for the production of videos depicting interactions between correctional staff and the deceased, Ashley Smith.

The Divisional Court found that the Coroner applied an incorrect and overly stringent test by requiring a demonstrated 'nexus' between the videos and the death, rather than assessing whether the evidence was 'material' to the purposes of the inquest.

The Court quashed the Coroner's decision and remitted the issue for reconsideration, holding that the denial of access to potentially relevant evidence constituted a breach of natural justice.