Mathieu Bélanger

The Court of Appeal for Ontario allowed in part the appeal of Westmount-Keele Limited in a solicitor’s negligence action against Nicholas C. Tibollo and his professional corporation.

The court found that the trial judge erred in declining to award damages for certain legal fees and elevator repairs, and varied the judgment to include these amounts.

The court otherwise upheld the trial judge’s findings regarding lost opportunity damages, property taxes, and other claims, finding no palpable and overriding error.

The appeal was allowed in part, and costs were awarded to the appellant.

The appellant appealed an order setting aside an ex parte order that had extended the time for service of his statement of claim.

The motion judge found the appellant failed to make full and fair disclosure regarding an ongoing Mutual Fund Dealers Association investigation.

The motion judge also dismissed the appellant's cross-motion to extend time retroactively due to prejudice to the respondents.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings and deferring to the discretionary balancing of prejudice.

The plaintiffs moved to set aside a dismissal order and a full and final release from a 2013 settlement, arguing the injured plaintiff was under a disability and the settlement was never approved by the court under Rule 7.08.

The plaintiffs' former lawyer had fraudulently settled the action without their knowledge and misappropriated the funds.

The court found the plaintiff was under a disability at the time, but declined to set aside the settlement because the tort insurer acted in good faith, was unaware of the disability, and the settlement itself was not unconscionable.

The motion was dismissed.

Suyi Cao brought a motion to stay the enforcement of a $45,000 order in favour of Monkhouse Law Professional Corporation, pending the conclusion of her breach of contract action against them.

Monkhouse Law brought a cross-motion to dismiss Cao's breach of contract action as an abuse of process, arguing issue estoppel.

The court dismissed Cao's motion to stay, finding she did not meet the stringent two-part test for staying a final order.

The court granted Monkhouse Law's motion to dismiss Cao's claim, holding that the issues raised in her breach of contract action had already been implicitly decided by Dawe J. in the prior assessment proceedings, thus satisfying the elements of issue estoppel.

The appellant, Donavan Locke, appealed orders from the Superior Court of Justice dismissing his second and third actions (alleging deceit and conspiracy against his former common-law partner and her lawyers regarding a property transfer) and dismissing his own motions (including a constitutional question and criminal contempt).

The Court of Appeal found no errors in the motion judge's decision, affirming that summary judgment was appropriate due to the appellant's lack of evidence and damages.

The court also upheld the dismissal of the appellant's motions, noting the constitutional question was "ill conceived" and there was no basis for criminal contempt.

The appeal was dismissed, and the appellant was ordered to pay costs to each respondent.

The defendant, Andre Bluteau, brought a motion for summary judgment to dismiss the plaintiff, Julie Caron's, action for negligent legal advice.

Bluteau argued that Caron had signed a Full and Final Release covering all claims, including the negligence claim.

Caron contended that she only intended to release claims for costs and relied on doctrines of non est factum and duress, alleging verbal assurances that the release would not preclude a future negligence action.

The court applied principles of contractual interpretation to the Release, finding its terms clear and unequivocal.

The court dismissed Caron's hearsay evidence regarding verbal assurances and found no basis for non est factum or duress, as she had legal representation and ample time to consider the terms.

The motion for summary judgment was granted, dismissing the plaintiff's claim.

The appellant sought to continue the assessment of solicitor accounts, which the application judge dismissed due to a jurisdictional issue (late requisition under the Solicitors Act).

The Court of Appeal allowed the appeal, emphasizing that courts should facilitate account assessment and that procedural defects should not be treated as nullities, especially when parties have consented and participated for years.

The court ordered the Assessment Officer to issue a decision on the merits without delay.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' claim alleging professional negligence in the handling and settling of a prior lawsuit.

The court denied the plaintiffs' last-minute adjournment request, finding their reasons insufficient and their non-compliance with the timetable unacceptable.

The court granted summary judgment, dismissing the claim on the grounds that it was without foundation, time-barred, and constituted an abuse of process, as many issues had been previously litigated and decided by other judges.

This is an appeal from a decision of the Superior Court of Justice that struck the appellant's statement of claim without leave to amend and dismissed the action.

The appellant had sued the respondent, a lawyer for an opposing party in separate litigation, alleging failure to respond to emails regarding mediation and constitutional rights violations due to a comment about his attire.

The motion judge found no duty of care, that the statement of claim was irremediably defective, and that the doctrine of absolute immunity applied.

The Court of Appeal affirmed the motion judge's decision, finding no errors of fact or law, and dismissed the appeal, upholding the application of established legal principles regarding striking pleadings and the standard of review for such decisions.

The moving party sought to set aside an order from a motion judge that dismissed his motion for an extension of time for leave to appeal.

The Court of Appeal found no error in the motion judge's discretionary decision, which had concluded that the underlying appeal lacked merit.

The motion was dismissed, and costs were awarded against the moving party.

The applicant sought directions from the Superior Court after an Assessment Officer determined he lacked jurisdiction to conduct a solicitor-client assessment.

The order for assessment had been obtained from a registrar outside the 30-day time limit prescribed by section 3(b) of the Solicitors Act.

The court held that while statutory timelines in the Solicitors Act can be treated as flexible standards, the applicant's failure to cure the jurisdictional defect despite being alerted to it years earlier prejudiced the respondents.

The court confirmed the assessment procedure was a nullity and awarded costs to the self-represented respondents.

The plaintiffs sought to have their statement of claim treated as issued on June 25, 2019, the day the limitation period expired under the Insurance Act.

A paralegal had presented the claim to a court clerk before the 5:00 pm closing time, but the clerk refused to process it, stating his computer was shutting down.

The court found that the plaintiffs did all that was required to commence the proceeding in time and that the failure was solely due to court staff.

Exercising its inherent jurisdiction, the court granted a nunc pro tunc order declaring the claim issued on June 25, 2019, and dismissed the defendants' summary judgment motion.

The defendants successfully moved to set aside a noting in default and default judgment in a construction lien action.

The parties could not agree on costs and filed written submissions.

The court found that the plaintiff ought to have consented to the motion, as its likelihood of success was very high.

Applying a notional set-off approach, the court awarded the defendants partial indemnity costs of $6,924.74, minus $2,000 for the plaintiff's costs thrown away, resulting in a net costs award of $4,900 payable by the plaintiff.

The defendants brought a motion to set aside a noting in default and default judgment entered against them in a construction lien dispute.

The court found that the motion was brought without delay, there was an adequate explanation for the default (including travel abroad, language barriers, and a COVID-19 hospitalization), and there was an arguable defence on the merits.

The court concluded that the interests of justice favoured setting aside the default judgment, noting that the plaintiff was protected by funds already paid into court.

The Appellants appealed a motion judge's decision to enforce a settlement in a failed real estate transaction.

The Appellants argued the motion judge erred by refusing to exercise discretion not to enforce the settlement, claiming new expert evidence changed the case and their new counsel was unaware of the outstanding offer.

The Court of Appeal affirmed the motion judge's decision, finding he properly exercised his discretion by considering all relevant factors and concluding it was not a "rare case" warranting non-enforcement.

The appeal was dismissed.

The plaintiff moved to extend the timetable for procedural steps in an action alleging historic sexual assault while in foster care.

The defendant Children's Aid Society cross-moved to dismiss the action for delay.

The court found that while the plaintiff's counsel initially caused delay by unilaterally cancelling discoveries, the defendant subsequently engaged in 'scorched earth' tactics that actively obstructed the litigation's progress.

Applying the Reid criteria, the court granted the extension, dismissed the cross-motion, and ordered the action into case management.

The court issued an endorsement following a case conference regarding whether an examination for discovery should proceed remotely by videoconference or in person during the COVID-19 pandemic.

The plaintiffs objected to a remote examination, citing concerns about assisting counsel, assessing witness demeanor, lack of solemnity, and potential for abuse.

The court, applying Rule 1.08 of the Rules of Civil Procedure, ordered the examination to proceed by videoconference, emphasizing the imperative of technological competency and the need to avoid litigation delays, finding that the benefits of proceeding remotely outweighed the perceived risks.

The moving party sought an extension of time to serve and file a notice of appeal from an order dismissing a motion to set aside a default judgment.

The notice of appeal was served one day late due to inadvertence of counsel.

The respondent opposed the motion, arguing prejudice, the moving party's pattern of breaches of court orders, and lack of merit of the proposed appeal.

The court granted the extension, finding that the one-day delay was minimal and explained, that no real prejudice resulted from the delay itself, that the moving party's prior defaults had been addressed through costs orders, and that the proposed appeal was not so devoid of merit as to warrant denial of the right to appeal.

An appeal concerning the failure to disclose immediately litigation agreements between a plaintiff (subrogated insurer) and a defendant that converted their adversarial relationship into a cooperative one.

The plaintiff and defendant entered into two agreements (2011 and 2016) whereby the defendant would defend the action and prosecute a third-party claim funded by the plaintiff, and subsequently the plaintiff assigned all its rights in the action to itself.

These agreements were not disclosed immediately but rather piecemeal throughout 2016.

The motion judge found the agreements should have been disclosed but refused to stay the action, finding no prejudice.

The appellate court reversed, holding that failure to immediately disclose agreements that change the litigation landscape constitutes abuse of process requiring a stay of the non-disclosing party's claim as a matter of principle.