Jarvis Postnikoff

The applicant brought a motion to remove counsel representing both the individual respondent and the corporate respondent in an oppression application.

The applicant argued that counsel had a conflict of interest in jointly representing both respondents and that counsel might be called as a witness.

The court found no basis to remove counsel on the grounds of being a potential witness.

However, the court held that a conflict of interest existed because the interests of the individual respondent and the corporate respondent were not aligned in the context of a shareholder dispute.

The motion was allowed in part, and counsel was disqualified from acting for the corporate respondent.

The plaintiffs brought a motion to remove the defendant's lawyer of record, alleging a conflict of interest based on the lawyer's prior involvement in related litigation.

The court found that the lawyer had never met or received confidential information from the moving plaintiff, and that the motion was brought for tactical reasons.

Applying the bright line rule from McKercher, the court concluded there was no conflict of interest and dismissed the motion.

The defendants brought a motion to dismiss the plaintiff's action as an abuse of process.

The plaintiff, an estate trustee, sued her former lawyer alleging he settled a share sale without authority and for less than fair market value.

The court found that the issue of the shares' value had already been conclusively determined in a prior application, making the current claim regarding share value an abuse of process.

However, the court allowed the claim regarding the lawyer's actual authority to proceed as a triable issue.

Costs were awarded to the defendants against the estate and the trustee personally.

This was a costs decision following a trial arising from defective pool and patio installation that caused cracking in the plaintiffs' backyard cement patio.

The court held that the plaintiffs' pre-trial offer to settle engaged Rule 49.10 because the judgment obtained at trial was more favourable than the offer when damages, prejudgment interest, fees, disbursements, and HST were compared.

The court also relied on the defendant's obstructive litigation conduct, refusal to admit uncontroversial matters, and failure to advance a viable defence.

Substantial indemnity costs of $100,000 were awarded to the plaintiffs, and party-and-party costs of $47,339.91 were awarded to the third party against the defendant.