Alexandra Lev-Farrell

The defendants, comprising law firms and solicitors, brought two summary judgment motions seeking to dismiss professional negligence claims brought against them by the plaintiffs.

The plaintiffs alleged negligence for failing to advise them of their rescission rights under the Arthur Wishart Act (Franchise Disclosure) 2000.

The court dismissed both motions, finding that there were genuine issues requiring a trial regarding the scope of the retainers, the duty of care owed by the defendants, and causation.

The court emphasized the need for a trial to assess witness credibility and the necessity of expert evidence in professional negligence claims, and declined to grant partial summary judgment due to the interconnectedness and complexity of the claims.

The plaintiffs, self-represented litigants, brought a motion to remove the defendants' counsel, R. Leigh Youd and his firm, BYLD, alleging breach of privilege, that Mr. Youd was a material witness, and a conflict of interest due to an alleged "phantom client" relationship.

The court dismissed the motion, finding no waiver of privilege, no basis for Mr. Youd to be a material witness, and no solicitor-client relationship with the plaintiffs.

The court emphasized that removal of counsel is a discretionary decision made only in the clearest of cases, and that the plaintiffs' arguments relied on speculation and misapprehensions of law and fact.

Costs were awarded to the defendants.

The plaintiff landlord brought a motion for summary judgment against a commercial tenant and its indemnifiers for damages arising from a breached lease.

The tenant failed to complete fixturing or pay rent, prompting the landlord to terminate the lease.

One indemnifier opposed the motion, arguing lack of consideration, defective notice, non est factum, and lack of independent legal advice.

The court applied the summary judgment framework and found no genuine issues requiring a trial, holding that the indemnifier received consideration and the landlord's notice of termination properly preserved its right to claim future damages.

Partial summary judgment was granted for arrears and future losses up to a specified date, with costs awarded to the plaintiff.

The defendants moved to dismiss the action for delay and for failure to comply with the Rules of Civil Procedure after the plaintiffs failed to retain counsel for the corporate plaintiff and did not move to restore the action to the trial list after it was struck.

The court reviewed the chronology of the proceeding and found the plaintiffs had taken no steps to advance the litigation since 2013 and had failed to comply with earlier court orders.

Although the record demonstrated significant delay and procedural non‑compliance, the court exercised discretion to permit the plaintiffs a final opportunity to retain counsel.

The motion to dismiss was adjourned sine die on strict conditions, including a requirement to retain counsel within 60 days and payment of partial costs to the defendants.

Three sets of third parties brought motions for security for costs against the third-party plaintiff, a non-resident corporation with no assets in Ontario.

The third-party plaintiff opposed the motions, arguing financial hardship and relying on the income stream of its parent company and the personal undertaking of its principal.

The court found the financial disclosure provided by the third-party plaintiff to be deficient and inconsistent, failing to meet the high evidentiary burden required to establish impecuniosity or hardship.

The court granted the motions and ordered the third-party plaintiff to post security for costs in tranches.

The defendant lawyers brought a motion for security for costs and a stay of proceedings against the corporate plaintiff in a legal malpractice action.

The court granted a temporary stay due to the plaintiff's failure to file annual returns under the Corporations Information Act.

On the security for costs motion, the court found that while the corporate plaintiff had no assets, it failed to prove impecuniosity because its shareholders, who were also creditors, refused to fund the litigation but did not provide evidence that they lacked the means to do so.

The court ordered the plaintiff to post $60,000 in security for costs in three stages and stayed the action until the security is posted.

The appellant appealed a judgment dismissing its application for a determination that the respondent tenant must pay $431,000 for parking lot repaving under its lease.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the application judge's conclusion that the work significantly extended the life of the parking lot and reduced operating costs, which were factual findings entitled to substantial deference.

The applicant landlord sought a declaration that a commercial tenant was required to pay its proportionate share of the cost of rehabilitating a shopping centre parking lot as additional rent under a lease provision requiring tenants to pay common area maintenance costs for repairs and maintenance.

The dispute turned on whether the parking lot rehabilitation constituted a repair or a capital expenditure under “accepted accounting practice.” After considering expert engineering and accounting evidence and principles drawn from GAAP and relevant case law, the court concluded that the work significantly extended the life of the parking lot and reduced operating costs, thereby enhancing its service potential.

The court held that the rehabilitation constituted a capital expenditure rather than a repair within the meaning of the lease.

Accordingly, the tenant was not responsible for the cost and was entitled to set-off amounts already paid.

The appellants appealed the dismissal of their application for relief from forfeiture regarding two commercial leases.

They argued the application judge erred by not considering that relief is generally granted for monetary arrears and whether the default could be cured.

The Court of Appeal dismissed the appeal, noting relief from forfeiture is a discretionary remedy and an exception.

The application judge properly considered the appellants' delay in proceeding and their failure to pay rent, which amounted to seven months' arrears, despite the landlord's offer to accept payment without prejudice.

The appellant operated a business arranging hotel accommodations for sports teams, receiving commissions from the hotels but no remuneration from the teams.

He was charged with acting as an unregistered travel agent under the Travel Industry Act, 2002.

The justice of the peace acquitted him, finding he did not sell travel services to the teams as a principal.

The Ontario Court of Justice reversed the acquittal and entered a conviction.

The Court of Appeal dismissed the appeal, holding that the statutory definition of 'travel agent' includes a person who sells travel services to consumers as an agent for the provider of those services.

The appellant bank issued letters of credit to secure payment for shrimp supplied by the respondent to the bank's customer.

The letters of credit required delivery receipts as a precondition to payment.

The bank's customer failed to provide the receipts, and the bank used the proceeds from the sale of the shrimp to pay down the customer's line of credit instead of paying the respondent.

The Court of Appeal upheld the trial judge's finding that the bank was disentitled from relying on the defence of strict documentary compliance because it colluded with its customer to defeat the purpose of the letters of credit and breached its implied duty of good faith.

The defendants sought leave to appeal an interlocutory costs order that denied them costs despite being successful on a motion for an interlocutory injunction.

The motions judge had denied costs on the basis that counsel intentionally underestimated the length of the motion to get on the list.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as it extended previous case law by denying costs to successful parties who had not misled the judge hearing the motion.

The court also found that the appropriate use of cost sanctions for time misestimates is an issue of public importance.

In supplementary reasons for judgment, the Court of Appeal clarified its earlier costs order.

The court held that the third party and the defendants are jointly and severally liable to pay the plaintiff's costs of the motion and the appeal.

The appellant purchased a condominium unit and paid a deposit.

The developer placed the deposit in trust, obtained prescribed security, and then used the funds to repay a building loan.

The developer failed to pay the appellant interest on her deposit during her interim occupancy, as required by s. 53(3) of the Condominium Act.

The appellant sued the developer's directors and others for breach of trust.

The motion judge granted summary judgment dismissing the claim, finding that the trust obligation ended when the prescribed security was obtained.

The Court of Appeal allowed the appeal, holding that the statutory trust imposed by s. 53(1) extends to the interest payable under s. 53(3) and is not terminated by the provision of security.