Marc Kestenberg

This is a costs endorsement following a motion where the Au Defendants successfully sought the removal of the plaintiff's lawyers but were unsuccessful in obtaining production of litigation files.

The Au Defendants sought substantial indemnity costs, arguing the motion was avoidable.

The plaintiff opposed substantial indemnity and sought a reduction in partial indemnity costs.

The court found no basis for substantial indemnity costs, noting that declining voluntary withdrawal or opposing the motion did not constitute reprehensible conduct.

It acknowledged divided success but emphasized the Au Defendants' primary success.

The court awarded the Au Defendants $22,000 in partial indemnity costs.

Additionally, Clark Peddle, a non-moving defendant, was awarded $1,000 in costs for his Rule 39.03 examination, which was deemed largely irrelevant to the motion's disposition and unopposed by the plaintiff.

The defendants in a solicitors' negligence action brought a motion to stay the proceeding pending payment of a prior costs order and for security for costs.

The court declined to stay the action over a disputed $240 interest claim.

However, the court granted the motion for security for costs, finding that the corporate plaintiff resided outside Ontario, had insufficient assets in the province, and failed to prove impecuniosity.

The plaintiff was ordered to post $15,000 as security for costs up to the completion of discoveries.

The moving defendants in a solicitor negligence action brought a motion to remove the plaintiff's lawyer from the record and for production of his litigation files.

The defendants argued the lawyer was likely to be a material witness regarding the plaintiff's efforts to mitigate damages on an appeal.

The court granted the motion to remove the lawyer, finding he was likely to be called as a witness and his role as advocate could not be reconciled with his role as a witness.

The motion for production of the litigation files was dismissed as premature and overbroad.

The plaintiff in a solicitors' negligence action brought a motion to remove the defendants' counsel, alleging a conflict of interest.

The plaintiff claimed the defendants' lawyer obtained confidential information about him during a prior, allegedly related action where the lawyer represented a different party.

The Master dismissed the motion, finding no factual nexus between the prior action and the current negligence claim, and concluding that a fair-minded, reasonably informed member of the public would not find removal necessary for the proper administration of justice.

The defendant brought a motion to compel production of documents referenced in an affidavit sworn by the plaintiff's solicitor.

The affidavit was filed in response to a motion to quash the plaintiff's late appeal and referenced communications between the plaintiff and its counsel regarding the intent to appeal.

The court found that the affidavit 'entered the fray' and constituted an implied waiver of solicitor-client privilege.

However, because the waiver had not yet become final, the court permitted the plaintiff to withdraw the impugned affidavit and replace it with one from a corporate representative to avoid the production order.

Costs were awarded to the defendant.

The defendant, UAP Inc. o/a Napa Auto Parts, appealed a Master's decision that granted the plaintiff, John Turner, an extension to the deadline to set the action down for trial.

The appeal concerned the two-part test for dismissing an action for delay under Rule 48.14, specifically whether the plaintiff provided an acceptable explanation for the delay and rebutted the presumption of prejudice to the defendant.

The court found no palpable or overriding error in the Master's decision, concluding that the Master properly considered the evidentiary matrix and exercised discretion.

The appeal was dismissed.

The defendant brought a motion seeking production of solicitor-client privileged communications and documents related to the plaintiff's decision to appeal a prior Master's decision.

The Master, however, determined that the motion was "in an appeal" and therefore lacked jurisdiction to hear it under Rule 37.02(2)(g) of the Rules of Civil Procedure.

The Master rejected arguments that parties could confer jurisdiction by consent or that a motion to quash an appeal was separate from the appeal itself.

The motion was adjourned to be heard by a judge.

The court issued its third and final set of reasons following a hearing on June 27, 2018, confirming an interim ruling and addressing costs.

The court drew negative inferences against Greyslone Ltd., Belview Management Ltd., and Mr. Czerlau due to evasive conduct and lack of corporate authority, disallowing claims of privilege over solicitors' files.

It ordered all solicitors' files (Assuras, Lof, Brown) to be delivered to an Independent Supervising Solicitor for review and production of relevant documents to the plaintiff.

The court awarded substantial indemnity costs of $19,878.53 against Mr. Czerlau, Greyslone Ltd., and Belview Management Ltd. jointly and severally, and partial indemnity costs of $13,626.70 against Ms. Assuras, also jointly and severally with the others to that extent.

The plaintiff, Canadian National Railway Company (CN), brought a motion to compel the production of files and examination for discovery of three non-party lawyers: Mr. Brown, Mr. Lof, and Ms. Assuras.

The motion arose from a Mareva and Anton Pillar order and a subsequent summary judgment against Greyslone and Belview, which were found to have no legal status at the time of certain transactions and failed to account for $661,000.

Ms. Assuras, counsel for Greyslone and Belview, opposed the motion, asserting privilege, while Mr. Lof and Mr. Brown took no position.

The court found Mr. Czerlau's (who instructed Ms. Assuras) testimony to be evasive and misleading, and inferred that Greyslone and Belview were not acting at arm's length to Mr. Holmes, suggesting they were shams.

Consequently, the court proposed to draw negative inferences against Greyslone and Belview's bona fides, disallow claims of privilege, and ordered the production of the entire files of Ms. Assuras, Mr. Lof, and Mr. Brown to the plaintiff, subject to a 14-day period for further submissions.

The court heard three motions for summary judgment in two related actions concerning second and third mortgages on a property.

The defendant, Hassan Talani, challenged the validity of these mortgages, claiming the property was a matrimonial home requiring spousal consent and that prior mortgages prohibited subsequent encumbrances.

He also counterclaimed against his real estate lawyer, Laman Meshadiyeva, alleging negligence and exploitation of a gambling addiction.

The court rejected Talani's arguments, finding no genuine issue for trial regarding the matrimonial home status or the validity of the mortgages.

The court also dismissed Talani's counterclaim against Meshadiyeva due to lack of evidence.

Partial summary judgment was deemed appropriate, removing the mortgagees and lawyer from the litigation while allowing other discrete claims to proceed.

The plaintiff appealed a Master's order requiring the production of its solicitor's transaction file, while the defendants cross-appealed the Master's exclusion of docket entries and the costs award.

The Master had found that the plaintiff impliedly waived solicitor-client privilege by filing an extensive affidavit from its solicitor in support of a summary judgment motion.

The Superior Court dismissed both appeals, upholding the Master's finding of waiver and the exclusion of dockets as irrelevant.

The court awarded substantial indemnity costs against the plaintiff for appealing an issue it had effectively conceded before the Master.

The appellants appealed from a summary judgment dismissing their counterclaim for professional negligence against their former solicitors.

The law firm had been retained for nearly five years to represent the appellants in protracted litigation and subsequently sued for unpaid fees.

The appellants counterclaimed for damages, alleging the firm failed to provide a meaningful assessment of potential damages that would have enabled an earlier settlement.

The motion judge granted summary judgment, finding no causal link between the firm's failure to obtain a formal damages assessment and the continuation of the litigation.

The Court of Appeal allowed the appeal, finding the motion judge erred in law and that genuine issues requiring trial existed.

The defendants, a lawyer and his law firm, brought a motion for summary judgment to dismiss the plaintiffs' claim for solicitor negligence and improper retention of funds.

The plaintiffs sought an adjournment on the day of the hearing, which was denied due to issue estoppel and lack of a change in circumstances.

The court found the plaintiffs' responding evidence, consisting solely of a law clerk's affidavit, to be largely inadmissible.

The court granted the summary judgment motion, finding no genuine issue requiring a trial as the lawyer had met the standard of care, followed instructions, and properly accounted for all funds.

The plaintiff brought a motion to reinstate a professional negligence action that had been administratively dismissed and dormant for over two years.

The defendants brought a cross-motion to dismiss the action for delay under Rule 48.14.

The court found that although there was a two-year unexplained delay, the defendants suffered no non-compensable prejudice and had not demonstrated any urgency in moving the case along.

The court allowed the plaintiff's motion, reinstated the action, and dismissed the defendants' cross-motion.

The defendant brought a motion to compel the plaintiff to produce its lawyer's transaction file, arguing the plaintiff waived solicitor-client privilege by filing an affidavit from its transaction counsel on an upcoming summary judgment motion.

The court reviewed the principles of deemed waiver and found that the lawyer's affidavit contained numerous substantive statements regarding legal advice, the plaintiff's state of mind, and selective disclosure of privileged communications.

The court concluded that fairness and consistency required the production of the balance of the transaction file, excluding retainer agreements, dockets, and accounts.

Aird & Berlis LLP, a law firm, moved for summary judgment for unpaid legal fees and disbursements totaling $182,569.63 from its former clients, Oravital Inc. and Alliance H. Inc. Oravital counterclaimed for professional negligence, alleging deficiencies in legal services and claiming over $600,000 in damages.

The court found that Oravital's principals were sophisticated businesspeople who understood the litigation risks and value of their claim.

The court determined there was no causal link between the alleged failure of Aird & Berlis to obtain an earlier formal damages assessment and Oravital's decision to continue the litigation.

Consequently, the motion for summary judgment was granted in favour of Aird & Berlis, and Oravital's counterclaim was dismissed.

The applicant landlord sought a declaration that harmonized sales tax (HST) must be added to settlement payments made by the respondent under a settlement agreement.

The agreement, negotiated during Companies' Creditors Arrangement Act (CCAA) proceedings, quantified the landlord's claim after the tenant disclaimed a lease.

The court found the settlement agreement ambiguous regarding the obligation to pay HST.

Applying principles of contractual interpretation, including objective factual matrix, commercial common practice in real estate, and the parties' post-execution conduct, the court determined that the settlement payments were exclusive of HST, and the respondent was required to pay HST in addition.

The Plaintiffs sought leave under Rule 39.02(2) to file a supplementary affidavit in response to the Defendants' reliance on the Limitations Act and tolling provisions, which the Plaintiffs claimed were raised unexpectedly after cross-examination.

The court granted leave, finding that the Plaintiffs were genuinely unaware of the disputed matters and that the strategic advocacy of the Defendants did not outweigh the principle of liberal construction of the Rules to achieve a just determination on the merits.

This decision addresses the issue of costs following a successful summary judgment motion by the defendant Williams-Litigation Lawyers.

The defendant sought costs on a substantial or partial indemnity basis, while the plaintiffs proposed a lower partial indemnity amount.

The court awarded costs to Williams-Litigation Lawyers on a partial indemnity basis, considering factors such as the defendant's success, the significant damages claimed by the plaintiffs, the narrow but important legal issue, counsel's experience, and efforts to resolve the dispute without costs.

The court found the hours claimed by the defendant's counsel to be higher than what the plaintiffs ought to have expected given the non-complex nature of the proceedings.

The plaintiffs brought an action for defamation against a lawyer and the law firm with which she practiced in association.

The defendant law firm brought a motion for summary judgment to dismiss the action against it, arguing it was not vicariously liable for the lawyer's actions.

The court found that the lawyer was not a partner or employee of the firm, and the firm did not control her practice.

The firm's letterhead and marketing materials clearly indicated she was 'Practicing in Association not in Partnership'.

The court granted summary judgment and dismissed the action against the law firm.