Keith Geurts

The plaintiffs brought a motion for leave to appeal the order of Morgan J. dated February 24, 2023.

The Divisional Court dismissed the motion and ordered the plaintiffs to pay costs of $10,000 all-inclusive to the responding defendants.

The defendants brought a motion for leave to appeal an order of the lower court.

The Divisional Court denied the motion for leave to appeal.

No costs were awarded as the responding party, who was self-represented, did not file a costs outline.

This motion concerned an application by the law firm Clyde & Co to be removed as counsel of record for the defendants, primarily Pacific Mortgage Group Inc., due to a breakdown in the solicitor-client relationship and the client's failure to pay accounts and provide instructions.

The client, a sophisticated litigant, opposed the motion, denying a breakdown and claiming prejudice due to the imminent trial date.

The court found the relationship irretrievably broken due to the client's uncooperative behaviour and failure to pay and provide instructions.

The motion to remove counsel was granted, and the trial date was maintained, with no prejudice found to the client given his sophistication and prior knowledge of the issues.

The defendant, a criminal defence lawyer, brought a motion to dismiss the plaintiff's civil action for professional negligence as an abuse of process.

The plaintiff had been convicted of criminal offences, and his appeals, which included allegations of ineffective assistance of counsel against the defendant, were dismissed.

The court found that allowing the civil action to proceed would require re-litigating the criminal convictions and finding them incorrect, constituting an impermissible collateral attack.

However, noting the plaintiff's new evidence, the court stayed the action rather than dismissing it, pending a successful review of the convictions under the Criminal Code.

The appellant appealed a decision upholding the respondent bank's refusal to approve a rehabilitation plan.

The Court of Appeal dismissed the appeal, finding that the bank had the discretion to refuse approval for expenses over $5,000 and that its refusal was reasonable based on the medical opinion evidence.

The court also held that the application judge's reasons were adequate.

The defendant bank successfully brought a motion for summary judgment and sought costs on a substantial indemnity basis, relying on two offers to settle.

The court found that the defendant's second offer, which required the plaintiff to resign and forfeit ongoing long-term disability benefits, superseded the first offer.

Because the value of the ongoing benefits was unknown, the defendant could not prove the summary judgment dismissal was more favourable than the second offer.

The court awarded the defendant costs of the motion and the action on a partial indemnity basis, fixed at $57,500 inclusive.

The plaintiff sued her employer, CIBC, and the plan administrator, Great-West Life, for long-term disability benefits, funding for treatment plans, and damages for mental distress and punitive damages.

CIBC brought a motion for summary judgment to dismiss the claims against it.

The court found that CIBC did not breach its duty of good faith in refusing to fund the proposed treatment plans, as its decision was based on proper principles and supported by medical opinions.

The court also found no bad faith in CIBC withholding one month of benefits due to the plaintiff's failure to provide advance notice of out-of-province travel.

The motion for summary judgment was granted and the claims against CIBC were dismissed.

The plaintiff sued his former employer and a disability insurer for long-term disability benefits after suffering a stroke shortly after his termination.

In his reply to the employer's statement of defence, the plaintiff claimed wrongful dismissal.

The employer moved for summary judgment, arguing the reply raised a new, statute-barred cause of action.

The motion judge dismissed the motion, finding the statement of claim's factual matrix provided sufficient notice of the wrongful dismissal claim.

The Court of Appeal dismissed the employer's appeal, agreeing that the wrongful dismissal claim was not a new cause of action and came as no surprise to the employer.

The defendant employer moved for summary judgment seeking to strike portions of the reply, bar amendment of the statement of claim, and dismiss the action on the basis that the reply advanced a new wrongful dismissal cause of action outside the limitation period.

The court applied the broader, factually-oriented and purposive approach to whether a pleading asserts a new cause of action, focusing on whether the original statement of claim gave notice of the factual matrix.

The court held that the claim for loss of disability benefits arising from termination was already grounded in the pleaded employment relationship, termination, disability, and alleged breach of the employment contract.

The reply merely answered the defence allegation of termination for misconduct and did not take the employer by surprise.

The summary judgment motion was dismissed.

The self-represented appellant appealed an order dismissing her motion for summary judgment and granting summary judgment in favour of the respondents, her former solicitors.

The Court of Appeal dismissed the appeal, finding that the claim was without merit and barred by the principle of res judicata, as a previous action against the same defendants had already been dismissed.

The court also dismissed a motion to introduce fresh evidence and declined to award costs.

The Registrar of the Alcohol and Gaming Commission appealed a Divisional Court decision that overturned five findings of liquor licence infractions by the respondent restaurant and reduced its licence suspension.

The Court of Appeal allowed the appeal in part, finding that the Divisional Court erred by reassessing findings of mixed fact and law regarding three infractions, including encouraging immoderate consumption and serving an intoxicated patron.

The Court of Appeal also held that the Divisional Court breached natural justice by imposing a new penalty without hearing submissions.

A 14-day licence suspension was substituted.

The appellant appealed a summary judgment dismissing her professional negligence action against her former solicitor.

The action stemmed from a previous lawsuit where the solicitor had concerns about the appellant's mental competency.

The Court of Appeal found no evidence that the solicitor breached the standard of care in the unusual circumstances of the case.

The appeal was dismissed with costs.

The Crown sought leave to appeal a conditional sentence imposed for three counts of distribution of child pornography and one count of possession of child pornography, arguing the sentencing judge misapprehended the offence circumstances, failed to grasp the nature of the offences, and gave insufficient weight to denunciation and general deterrence.

The court held the sentencing judge was aware of the relevant facts, was entitled to accept the uncontradicted psychiatric evidence that the respondent was not a pedophile, and properly relied on a closely analogous prior authority.

The court reaffirmed that, for certain offenders, a strict conditional sentence can adequately serve denunciation and general deterrence in child pornography cases.

Leave to appeal was granted, but the sentence appeal was dismissed.

The appellant appealed the dismissal of her application for a declaration that a transfer of title and mortgage registered against the family home were of no force and effect.

The property had been transferred to the mother pursuant to a previous judgment, which also gave the appellant a 35% beneficial interest in the proceeds if the property was sold.

The mother transferred the property to two other siblings and registered a mortgage.

The Court of Appeal allowed the appeal, finding that the previous judgment made the mother a trustee of the property at the point of sale, and she had not proven that a valid sale at fair market value occurred.

The matter was referred back for trial.