Mark M. Orkin

The appellant lawyer was sued for defamation by the opposing party in a former matrimonial proceeding.

The lawyer sought to use documents provided to him by his former client to defend the defamation action, and moved for relief from the deemed undertaking rule.

The motion judge dismissed the motion and ordered the lawyer to return the documents to his former client.

The Court of Appeal allowed the appeal, holding that the deemed undertaking rule did not apply because the documents were not obtained under the discovery rules, but rather provided by the client to her own lawyer.

The Court also set aside the order to return the documents, as neither party had requested that relief.

The solicitor brought a motion seeking to stay an ongoing assessment of legal accounts before an assessment officer, arguing that issues of law raised in the assessment exceeded the officer’s jurisdiction under the Solicitors Act.

The client opposed, asserting the assessment officer had jurisdiction and that the objection was raised too late after the solicitor had already participated in the assessment process.

The court reviewed the limited jurisdiction of assessment officers, noting they determine quantum but cannot resolve genuine disputes about retainers or broader legal issues.

Because the solicitor intended to raise issues including champerty, maintenance, and intentional interference with contractual relations, the court held that these matters required determination by a judge.

The assessment proceeding was therefore stayed on condition that the solicitor commence an action or application within 60 days to determine the adequacy of the account and related issues.

The appellant solicitors appealed a motion judge's order regarding the assessment of their accounts.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that there was a single retainer covering multiple matters, making the earlier bills interim rather than final.

Because the order for assessment was obtained within thirty days of the final bill, it properly applied to all accounts.

Leave to appeal the costs order was also refused.

The appellants appealed a trial judge's order awarding the respondent $70,000 in partial indemnity costs.

The Court of Appeal found that the trial judge erred by fixing costs based on hourly rates exceeding the costs grid without a finding of special expertise, and by failing to consider whether the amount was fair and reasonable for the unsuccessful party to pay.

The appeal was allowed, and the costs award was reduced to $50,000.

The applicant union sought certification, and a representation vote was held.

The respondent employer and objecting employees alleged that the union's president breached the Registrar's 'silent period' direction by speaking to employees waiting to vote.

Although there was no direct evidence of what was said, the union president did not testify to explain his conduct.

The Board drew an adverse inference, concluded the direction was likely contravened, and set aside the vote, ordering a new representation vote.