Martin Z. Rosenbaum

A party brought a motion seeking costs personally against his former lawyer under Rule 24(9) of the Family Law Rules after incurring significant expenses due to the lawyer’s failure to protect the party’s procedural rights in a family proceeding.

The lawyer had been retained while the client was already in default but failed to notify opposing counsel, file an answer, or take steps to secure consent or an order permitting late filing.

As a result, the opposing party proceeded toward an uncontested trial, causing unnecessary litigation steps and costs.

Applying the two‑stage analysis for costs against counsel, the court found the lawyer’s conduct negligently caused unnecessary costs and was inconsistent with the goals of the justice system.

The court exercised its discretion to order the lawyer personally to reimburse the client for $14,500 in costs.

A client opposed confirmation of an assessment officer’s certificate that had dramatically reduced the lawyer’s accounts under the Solicitors Act.

The court held that the assessment officer lacked jurisdiction to assess the lawyer’s criminal defence accounts because more than twelve months had passed since their delivery and payment without an order permitting assessment based on special circumstances.

However, the assessment officer had jurisdiction to assess the civil matter accounts, which were treated as interim and final accounts capable of review together.

The court found some of the assessment officer’s criticisms unsupported or not tied to specific reductions but agreed that certain overhead-related charges and lack of meaningful results justified a reduction.

The certificate was varied so that no rebate applied to the criminal matter and the client received a $7,500 rebate with interest for the civil matter.

The plaintiff and other lien claimants sought a determination of the basic holdback amount under the Construction Lien Act following the sale of a partially completed retirement home project by the defendant mortgagee.

The mortgagee argued the holdback was reduced by payments made to sub-trades during construction.

The court found that the owner violated section 25 of the Act by releasing holdback funds before certificates of completion were issued, and that such a breach could not be cured retroactively.

The court fixed the basic holdback at the full 10% of the value of services and materials provided, plus applicable GST.

The appellant appealed a decision by the Board of Directors of the respondent denying its reaccreditation as a member agency.

The Divisional Court determined the standard of review was correctness.

The court found that the respondent followed its own procedures fairly, and there was ample evidence to support the denial of reaccreditation due to the appellant's non-compliance with accreditation standards.

The appeal was dismissed with costs awarded to the respondent.

The applicant brought an application against the responding party union.

When the hearing resumed, the parties engaged in settlement discussions and reached an agreement.

As a result of the settlement, the applicant requested to withdraw the application.

The Board granted the request and the application was withdrawn.

The applicant union alleged that the responding party, a union member involved in an ongoing complaint against the union, threatened and intimidated another member who was scheduled to testify as a witness in that ongoing complaint.

The union alleged violations of sections 76 and 87(2) of the Labour Relations Act.

The Board dismissed the section 87(2) allegation because the responding party was not acting on behalf of a trade union.

The Board also dismissed the section 76 allegation, finding that the responding party's comments, viewed objectively in context, did not convey a threat of serious bodily harm or amount to intimidation or coercion intended to prevent the witness from testifying.

The applicants filed an application for termination of bargaining rights under section 63(2) of the Labour Relations Act, 1995.

A representation vote was held and the ballot box was initially sealed.

At the hearing, the intervenor and applicants moved to count the ballots, which the responding party opposed.

The Board directed the ballots be counted, finding no serious prejudice to the responding party.

As not more than fifty percent of the ballots were cast in opposition to the responding party, the application was dismissed.

The applicants filed two applications to terminate the bargaining rights of the responding trade union in the construction industry.

During the proceedings, the Labour Relations Act was amended by Bill 7.

The Board held that under the new Act, applicants are no longer required to establish the voluntariness of petition documents prior to a representation vote, unless the union specifically pleads and proves employer initiation or interference under section 63(16).

The Board also held that the principle from April Waterproofing Ltd., which excludes illegally hired employees from the bargaining unit for voting purposes, remains unaffected by the Bill 7 amendments.

The Board declared the union's bargaining rights terminated in one file and directed the other to continue for evidence on the illegal hiring issue.

The Ontario Labour Relations Board heard related applications concerning a dispute in the drywall industry over whether recent negotiations produced binding collective agreements in the industrial, commercial, and institutional (ICI) and residential sectors.

The employers argued that a settlement reached in June 1995, which included wage concessions in exchange for strict policing language, constituted binding agreements.

The union and objecting employees argued there was no binding settlement.

The Board found that the Carpenters' Ontario Provincial Council did not approve the ICI amendments, rendering them ineffective, and that there was no shared intention to create a stand-alone residential agreement.

The Board also found that a local union official breached the duty of fair representation by signing the settlement after assuring members he would not do so without their ratification, though no remedy beyond a declaration was ordered.

Finally, the Board upheld the parent union's imposition of a trusteeship over the local union.

The applicant sought reconsideration of a 1973 decision and certificate of accreditation to amend the name of the accredited employers' organization, clarify the geographic scope, and exclude the low-rise part of the residential sector of the construction industry.

The Board found that the current bargaining structure, the consent of the respondent union, and the position of the Mechanical Contractors Association Toronto justified the variation.

The Board noted that the accredited employers' organization had abandoned its bargaining rights in respect of the low-rise part of the residential sector.

The Board varied the decision and certificate accordingly.

The corporate respondents sought production of certain documents and reconsideration of a previous Board decision regarding the validity of a certificate of accreditation.

The Board ordered the production of documents relating to the attempt by a group of residential low-rise contractors to join the Mechanical Contractors Association Toronto, finding them arguably relevant.

However, the Board dismissed the request for reconsideration, affirming that under section 106(1) of the Labour Relations Act, a certificate of accreditation is final and conclusive for all purposes and its validity cannot be challenged in a collateral proceeding before the Board.

The applicant trade unions sought to add Conrad Black and Hollinger Inc. as respondents to related employer and unfair labour practice applications involving Willett Foods Limited and various franchisees.

A previous panel of the Board had already dismissed a similar request by one of the unions to add Black and a predecessor corporation.

The Board applied principles analogous to res judicata and issue estoppel, finding that the new allegations did not materially alter the basis of the claims.

The Board reaffirmed that section 1(4) of the Labour Relations Act is not intended merely to provide access to 'deep pockets' absent allegations of a transfer of work or other attempts to frustrate collective bargaining.

The request to add the respondents was denied, and the complaints against them were dismissed.

In a complex proceeding involving nearly two hundred parties, the Ontario Labour Relations Board issued procedural directions regarding the service of documents and the addition of respondents.

The Board ruled that service on a party's agent or counsel would be sufficient, and established a procedure for amending applications to add respondents by analogy to the Board's Rules of Procedure, requiring the applicant to provide amended filings and notice to all parties.

In consolidated complaints and an application for consent to prosecute, the corporate respondents raised a preliminary issue challenging the validity of a 1973 accreditation decision and certificate, arguing it was a nullity due to jurisdictional errors.

The Board declined to permit the challenge, holding that a certificate of accreditation conclusively establishes bargaining rights until revoked or quashed, and that one panel of the Board should not act as an appellate body over another.

In a separate evidentiary ruling, the Board held that evidence of conversations with a mediator in the presence of both parties is admissible, but evidence of what a mediator said to one party in private is inadmissible to protect the confidentiality of the mediation process.

The applicant sought accreditation as the bargaining agent for a group of employers in the construction industry.

The Board found the applicant to be a properly constituted employers' organization with the necessary authority to act as an accredited bargaining agent.

The parties agreed on a bargaining unit description that segregated the low-rise part of the residential sector.

The Board determined that, given the existing pattern of collective bargaining and the abandonment of bargaining rights by other associations in this specific sub-sector, there were clear and compelling reasons to divide the residential sector.

The Board approved the agreed-upon unit of employers as appropriate for collective bargaining.