Lauren Miriam Rakowski

The applicants, private lenders, sought rectification of the land register or re-registration of two discharged second mortgages after a failed real estate closing.

The court found that the applicants had received full payment and voluntarily returned the discharge funds to trust, and that there was no basis in law or equity to grant rectification or re-registration.

The application was dismissed.

This is a costs endorsement following the dismissal of the plaintiff's motion to extend time for service of her statement of claim and for trial.

The defendant, as the successful party on the prior motion, sought partial indemnity costs.

The plaintiff argued against a costs award, citing modest means and alleged negligence by the defendant and her previous lawyer.

The court affirmed the general rule that costs follow the event and are typically awarded on a partial indemnity basis.

It found no special circumstances to deviate from this principle, noting the plaintiff's insufficient evidence of impecuniosity and that alleged negligence of prior counsel was not a relevant factor in this costs determination.

The court awarded the defendant $14,000 in partial indemnity costs.

The plaintiff sought orders extending the time for service of her statement of claim and to set the action for trial in a solicitor's negligence claim against the defendant law firm.

The court dismissed the motion, finding the delay of over six and a half years in serving the claim to be extreme and inadequately explained.

The court also found significant actual prejudice to the defendant due to the passage of time, including likely loss of evidence and faded witness memories, and that allowing the action to proceed would bring the administration of justice into disrepute.

This appeal concerned the interpretation of an agreement of purchase and sale with an ambiguity regarding the calculation of the purchase price, which included Harmonized Sales Tax (HST).

The appellant vendor sought payment of remaining escrow funds.

The Court of Appeal found that the application judge erred by failing to properly interpret the agreement according to the principles of contractual interpretation and by relying on inadmissible expert appraisal evidence.

The appeal was allowed, the lower court's judgment and costs order were set aside, and the matter was remitted for a new hearing before a different judge.

The cross-appeal was not addressed.

This case involved two consolidated applications concerning a dispute over the allocation of Harmonized Sales Tax (HST) on the sale of a mixed-use property.

The Vendor (Miculinic Investment Corporation) sought the release of escrow funds withheld by the Purchaser (1000029174 Ontario Inc. and 2303515 Ontario Inc.), who had objected to the Vendor's HST allocation and sought a judicial declaration on the residential portion's value.

The court found that it was not its role to determine the HST amount, as the Canada Revenue Agency (CRA) had already made an assessment.

The court granted the Vendor's application for the release of escrow funds, finding the Purchaser's allocation not unreasonable but upholding the Vendor's right to the funds based on the CRA's assessment and the terms of the Agreement of Purchase and Sale.

The Purchaser's cross-application was dismissed.

The plaintiff brought a motion to inspect documents over which the defendant claimed solicitor-client and litigation privilege in an action for property damage allegedly caused by negligent road construction.

The court reviewed the disputed documents and found that most were protected by privilege, as litigation was contemplated early in the parties' negotiations.

The court ordered the production of a few documents that did not meet the test for privilege.

The court also dismissed the plaintiff's argument that the defendant had impliedly waived privilege in its Statement of Defence, but granted the plaintiff's motion to strike a paragraph of the Statement of Defence with leave to amend.

Shannondale Developments brought a motion for costs against Shanae Management Inc. following the Tribunal's dismissal of Shanae's zoning by-law appeal without a hearing.

Shannondale argued that Shanae's appeal was devoid of merit, lacked expert evidence, and was brought solely to leverage financial interests regarding off-site environmental remediation.

The Tribunal applied the Midland test and found that Shanae's conduct did not meet the high threshold of being unreasonable, frivolous, vexatious, or in bad faith.

The motion for costs was dismissed, with no costs payable by either party.

The applicant brought a motion to dismiss the appellant's appeal of a zoning by-law amendment without a hearing.

The appellant had not appealed the related official plan amendment, which had come into force and permitted the height and density reflected in the zoning by-law amendment.

The Tribunal found that the appeal had no reasonable prospect of success because the zoning by-law amendment must conform to the in-force official plan, and the appellant's concerns regarding off-site environmental remediation were beyond the scope of the site-specific zoning by-law amendment.

The motion was granted and the appeal was dismissed.

A case conference was held to manage multiple related actions.

The court noted that Commercial List matters were being traversed to the regular Civil list.

Directions were given for the filing of outstanding pleadings, setting aside defaults by consent, and establishing a mutually convenient discovery schedule with a target completion date of December 31, 2022.

The court also provided instructions for scheduling anticipated motions, including a potential Mareva injunction and a motion to join the trials.

A case conference was held regarding five related actions, three of which were on the Commercial List and two were regular civil matters.

Counsel agreed that the actions should be case managed together for efficiency.

The judge agreed to act as the case management judge for all five cases, which will require transferring the Commercial List actions to regular civil actions.

The defendants in a solicitor's negligence action brought a motion to compel the plaintiffs to fulfill an undertaking to produce the underlying litigation files from a settled will challenge.

The plaintiffs argued the files were protected by solicitor-client privilege and were not in their possession.

The court held that by suing the defendant lawyer for negligence and claiming the costs of the will challenge as damages, the plaintiffs had impliedly waived solicitor-client privilege over the underlying files.

The court ordered the plaintiffs to fulfill the undertaking, as the files were necessary for the defendants to assess the reasonableness of the damages claimed.

The plaintiff appealed an Associate Justice's decision removing its counsel of record due to a conflict of interest.

The defendant, a former lawyer for the plaintiff being sued for professional negligence, intended to call lawyers from the plaintiff's current firm as witnesses regarding advice they provided to the plaintiff before, during, and after the defendant's retainer.

The Superior Court dismissed the appeal, finding no palpable and overriding error in the Associate Justice's conclusion that the lawyers were likely to be material witnesses and that their continued representation would impair the administration of justice.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyers of record, arguing they had a conflict of interest and would likely be called as witnesses at trial.

The plaintiff's lawyers had represented the plaintiff in the underlying bankruptcy matters both before and after the defendants' retainer.

The court found that the lawyers' evidence regarding the advice they gave the plaintiff and the steps they took or failed to take was significant to the defendants' defence and mitigation arguments.

Applying the relevant principles, the court concluded that a fair-minded, reasonably informed member of the public would find the proper administration of justice required the lawyers' removal.

The motion to remove counsel was granted, while motions for production and leave to examine non-party witnesses were adjourned.

The defendant in a solicitor's negligence action appealed a master's order requiring him to answer five questions refused at his examination for discovery.

The Superior Court allowed the appeal in part.

The court held that the defendant did not have to answer questions asking him to identify primary and secondary legal sources regarding testamentary capacity, as this improperly required a fact witness to conduct legal research and provide an expert opinion on the standard of care.

However, the court upheld the master's order requiring the defendant to answer questions about his understanding of his duty to ascertain testamentary capacity and regarding his professional liability insurance coverage.

The appellant, a lawyer, sued the respondents (a law firm and individuals) for alleged breach of solicitor-client privilege.

The respondents successfully moved to strike the action based on issue estoppel, a decision the appellant appealed.

The Court of Appeal dismissed the appeal, affirming that the three-part test for issue estoppel was met.

The Master in an earlier, unrelated proceeding had squarely addressed and decided the privilege issue, finding it waived, and that decision was final due to the appellant's withdrawal of the appeal.

The defendants brought a motion to strike the plaintiff's statement of claim under Rule 21, arguing it was an abuse of process and barred by issue estoppel.

The plaintiff, a lawyer, sued the defendants for allegedly breaching solicitor-client privilege during a previous proceeding.

The court found that the issue of privilege and waiver had already been decided against the plaintiff in the prior proceeding by a Master.

Applying the test for issue estoppel, the court concluded the action was an impermissible collateral attack and struck the claim without leave to amend.

The plaintiff brought a motion to turn a second action against his real estate agents into a third party proceeding in his main action against the vendors for a failed real estate transaction, or alternatively to consolidate the actions.

The defendants opposed, arguing the motion was premature and should wait until their summary judgment motions were heard.

The court granted the plaintiff's motion, finding that leave to issue a third party claim is mandatory unless prejudice results, and the defendants would not be prejudiced by correcting the procedural error of commencing a separate action.

The plaintiff municipality brought a motion to compel the defendant engineering firm to produce a Risk Management Report and answer questions refused at cross-examination.

The defendant argued the report was protected by litigation and common law privilege.

The court found the report was relevant to the issue of discoverability, as the plaintiff alleged the defendant acted in a conflict of interest by reassuring it about the quality of work.

The court held the report was not protected by litigation privilege because it was not prepared for the dominant purpose of litigation, nor was it protected by common law privilege as it did not meet the Wigmore criteria.

The motion was granted.

The tenant appealed a Landlord and Tenant Board order terminating his tenancy and requiring him to pay for damages to an electrical panel.

The tenant argued he was denied an opportunity to participate because he mistook the date of the continuation hearing, and that the Board was biased.

The Divisional Court dismissed the appeal, finding the tenant had received proper notice of the hearing and the Board was entitled to proceed in his absence under the Statutory Powers Procedure Act.

The Court also found ample evidence supported the Board's conclusion that the tenant wilfully damaged the electrical panel.