M. Diskin

The plaintiff brought a motion for a further and better affidavit of documents, specifically seeking unredacted copies of the corporate defendant's 2015 and 2016 financial statements.

The defendants claimed the redacted portions were protected by litigation privilege and common interest privilege, arguing they were notes to shareholders describing the ongoing litigation.

The Master reviewed the documents under Rule 30.06(d) and found the defendants failed to establish the evidentiary foundation that the redacted portions were created for the dominant purpose of litigation.

The defendants were ordered to produce the unredacted financial statements and pay costs of $3,000.

The appellant law firm appealed the dismissal of its application under s. 23 of the Solicitors Act to enforce written retainer agreements for unpaid legal fees.

The application judge had ruled that the firm could only enforce its retainer via an assessment.

The Divisional Court dismissed the appeal but clarified the law, holding that simple or usual written fee agreements do not fall within the scope of s. 16(1) of the Act.

Consequently, they are not subject to the requirement for assessment under s. 17 or the prohibition against commencing an action under s. 23.

Lawyers may commence an action to recover fees under such agreements, though clients retain the right to request an assessment.

The plaintiffs' action was subject to a status hearing under Rule 48.14 after failing to set the matter down for trial.

The individual defendants sought a dismissal for delay.

The court found that the plaintiffs failed to provide an acceptable explanation for the extensive delays in the litigation, noting that the evidentiary record provided by the plaintiffs' counsel's legal assistant was inadequate and failed to explain significant gaps in time.

As the plaintiffs failed to meet the first branch of the conjunctive test to show cause, the action was dismissed.