Jordan David Sobel

The defendant moved to set aside a default judgment obtained by a lawyer seeking payment of unpaid legal fees.

The defendant argued that significant portions of the claim were released by bankruptcy, statute-barred under the Limitations Act, 2002, or subject to review under the Solicitors Act.

Applying the factors for setting aside default judgment from appellate authority, the court found the defendant had an arguable defence on the merits despite having deliberately failed to defend earlier.

The court also expressed concern about the plaintiff’s strategy of delaying issuance of a final invoice until after the defendant’s discharge from bankruptcy.

Balancing fairness, potential prejudice, and the integrity of the administration of justice, the court concluded the matter should proceed on its merits.

Judgment creditors brought a motion seeking production of a law firm’s books, trust records, bank statements, and documents relating to mortgages held in trust for the debtor, and asserted that the mortgage interests themselves were garnishable debts.

The court considered whether mortgage interests held in trust constituted “debts payable” under r. 60.08 of the Rules of Civil Procedure and whether the requested records could be compelled under r. 60.18(6).

The court held that a mortgage interest in land is not a liquidated money demand and therefore not a debt subject to garnishment until converted into money.

It further held that the broad documentary disclosure sought would breach solicitor-client privilege and no recognized exception justified disclosure.

The motion was dismissed.

The plaintiffs brought a motion for summary judgment against their long-time accountant and his corporation for breach of contract and breach of fiduciary duty.

The accountant had advised the plaintiffs to invest over $1 million in his own unregistered pooled mortgage fund, granting his corporation absolute discretion over the funds without disclosing the lack of regulatory safeguards or advising them to seek independent legal advice.

The court found the accountant and his corporation breached their fiduciary duties and contracts, and awarded restitutionary damages of $1,074,716 plus substantial indemnity costs.

Homeowners brought an undefended action against a contractor and its principals for breach of construction contracts relating to residential renovation projects.

The court found that the contractor failed to complete the contracted work and performed substandard workmanship, requiring demolition and repairs.

The plaintiffs were entitled to reimbursement of amounts paid under the contracts and additional damages for repair costs.

Claims alleging breach of trust under the Construction Lien Act were rejected because the statutory trust benefits subcontractors and suppliers, not owners.

The court also declined to grant declaratory relief concerning the potential survival of the debt in future bankruptcy proceedings under the Bankruptcy and Insolvency Act.

The plaintiff moved for leave under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck off.

The court applied the four-factor framework governing restoration motions, including whether delay was intentional, whether there was inordinate and inexcusable delay, whether the plaintiff rebutted any presumption of prejudice, and whether the defendant demonstrated actual prejudice.

The court found the delay was not intentional or contumelious and that the action had originally been set down for trial within a reasonable period after commencement.

The plaintiff provided evidence addressing delay and asserting no prejudice, while the defendant produced no concrete evidence of actual prejudice beyond general assertions.

Balancing the factors and the interests of the parties, the court granted leave to restore the action to the trial list and ordered the plaintiff to pay costs for the indulgence.

The plaintiffs moved for leave to appeal and for a stay of an order refusing to grant an adjournment of the trial.

The court dismissed the motion, finding that the decision to refuse an adjournment is discretionary and entitled to high deference, particularly on the Commercial List.

The plaintiffs failed to satisfy the test under Rule 62.02(4) for leave to appeal an interlocutory order, as the issue was not of broad public importance and there was no basis to doubt the correctness of the order.