Matthew Karabus

The appellant commercial landlord appealed from the Divisional Court's order quashing a motion judge's production order that had found the respondent tenants had impliedly waived solicitor-client privilege over legal advice received when entering into a commercial lease.

The Court of Appeal allowed the appeal, finding three errors by the Divisional Court: applying a correctness standard of review instead of palpable and overriding error, misreading the motion judge's reasons as based on the original rather than amended pleadings, and failing to recognize that even the amended defence still placed reliance on the respondents' understanding of their legal position.

The court clarified that deemed waiver of privilege does not require explicit reference to legal advice and provided a five-point summary of the applicable legal principles.

The moving parties brought a motion for leave to appeal paragraphs 7-11 of the order of Penny J. dated March 24, 2025.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no costs.

The succeeding estate trustees moved under Rule 59.06 to vary prior costs awards made after dismissal of their contempt motion regarding document production under an estate judgment.

They argued accidental slip, omission, and newly discovered facts, including post-endorsement waiver of privilege over lawyer file materials.

The court held Rule 59.06 is exceptional, does not permit a re-argument or review of judicial reasoning, and found no error in expressing the court’s manifest intention.

The court also found no new fact justifying variation and dismissed the motion.

An anti-SLAPP motion brought by directors of MediPharm Labs Corp. to dismiss a libel action arising from a lawyer's letter sent during a proxy contest.

The letter, authored by counsel and approved by the defendants, raised concerns about the plaintiffs' solicitation activities, potential securities law violations, and market manipulation.

The court found the expression related to matters of public interest, the plaintiffs failed to establish substantial merit to their claim, and the defendants had valid defences including qualified privilege, fair comment, responsible communication, and truth.

The motion was granted and the claim dismissed.

The moving parties brought a motion for leave to appeal the decision of Penny J. dated March 24, 2025.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

This is a costs endorsement following the dismissal of a contempt motion brought by succeeding estate trustees against former estate trustees for alleged breach of a document production order.

The court awarded costs to the successful respondents (former estate trustees), payable from the estate assets rather than personally by the applicants.

The court rejected the applicants' argument that success was divided and clarified that contempt motions must be used as a last resort, not a routine enforcement tool.

The court also addressed the principles governing costs awards in estate litigation and the entitlement of estate trustees to indemnification for reasonably incurred legal costs.

The applicants, succeeding estate trustees of the Estate of Cyril Hirsh Rosenthal, brought a motion seeking a declaration of contempt against the former estate trustee, Syed Pervez, for alleged non-compliance with a consent document production order.

The dispute primarily concerned documents in Pervez's possession in his capacity as an external accountant for a third-party corporation, Paragon Protection Ltd., in which the estate held an indirect interest.

The court dismissed the motion, finding that the applicants failed to prove beyond a reasonable doubt that Pervez was in contempt.

The court held that the consent order was unclear and overly broad as to whether it covered documents held in Pervez's professional accounting capacity, and further noted that Pervez had made good faith efforts to comply.

This decision concerns cross-motions for production in a complex commercial dispute involving Paragon Protection Ltd., Tamstu-Harjon Holdings of Canada Limited, and related parties.

The central issue was the scope of privilege over various documents, including those arising from related estate litigation and legal advice received over several decades.

The court clarified the law on waiver of privilege, settlement privilege, and the production of documents, granting and denying relief in part to both sides.

This decision concerns two related shareholder applications under section 241 of the Canada Business Corporations Act involving SpassMed Inc. and its affiliates.

The court reviews the procedural history, including consolidation of the applications, amendments to the relief sought, and the appointment of an interim monitor.

Due to significant disputes of fact and credibility, the court orders that the consolidated application be converted to an action to allow for a full trial process.

Mr. Langstaff, a defendant and plaintiff by counterclaim, moved to amend his counterclaim to add three senior managers of the corporate plaintiffs (Senior Management) as parties, increase exemplary damages, and add claims for defamation, unlawful means, and intrusion upon seclusion.

The motion was opposed on the basis that the proposed amendments were out of time due to limitation periods.

The court denied leave to add Senior Management as parties, finding that the material facts supporting their personal liability were known to Mr. Langstaff by January 2018 or September 2019, and thus the limitation period for adding parties had expired.

However, the court granted leave to increase exemplary damages and to add the new causes of action (defamation, unlawful means, intrusion upon seclusion) against the existing defendants, as the material facts for these claims were already pleaded within the limitation period.

The defendants, Jonathan Rosenthal and Benjamin Barrett, acting as Estate Trustees of Cyril Hirsch Rosenthal's Estate, brought a motion seeking an order to lift the deemed undertaking rule under Rule 30.1.01(8) for certain documents ("Pervez Productions") disclosed by Paragon Protection Ltd. in this proceeding.

They sought leave to use these documents in a related Estate Proceeding and a pending contempt motion against a former estate trustee, Syed Pervez.

The court granted the motion, finding that the interests of justice outweighed any potential prejudice to Paragon, especially given the close relationship between the proceedings and the fact that the documents were already ordered to be produced and were relevant.

The appellants appealed an interlocutory order requiring them to produce their former lawyers' file based on a deemed waiver of solicitor-client privilege.

The motion judge had found that the appellants waived privilege by pleading they signed a lease extension 'without legal advice', and that they could not 'unwaive' this privilege by subsequently amending their pleadings to remove that assertion.

The Divisional Court allowed the appeal, holding that the motion judge erred in law by failing to apply the test for deemed waiver to the amended pleadings, which no longer made the absence of legal advice a material issue.

The defendants by counterclaim (West Face Capital Inc., Gregory Boland, and Bruce Langstaff) moved for a Mareva injunction to prevent the plaintiffs by counterclaim (The Catalyst Capital Group Inc., Callidus Capital Corporation, and Newton Glassman) from removing assets from Ontario.

The moving parties alleged that Mr. Glassman was relocating to the Bahamas and dissipating assets to avoid potential judgments arising from a massive corporate espionage and defamation campaign.

The court found that while the moving parties established a strong prima facie case of deceitful and tortious conduct by Mr. Glassman, they failed to prove a real risk that assets were being removed with the specific intent to defeat creditors.

The court also found the moving parties delayed in bringing the motion and failed to establish irreparable harm.

The motions for a Mareva injunction were dismissed.

The moving parties brought a motion for leave to appeal the order of Wilson J. dated August 24, 2023.

The Divisional Court granted the motion for leave to appeal, with costs reserved to the panel hearing the appeal.

At a case conference, the defendants sought to schedule a short motion to strike the plaintiff's claim in its entirety.

The court declined to hear the substantive motion to strike at the case conference, noting that while Rule 50.13 allows for procedural orders and some interlocutory relief to expedite matters, it is inappropriate to dismiss an action entirely without the benefit of factums or case law.

The case conference was adjourned to allow the parties to consider their options, including a potential summary trial.

The plaintiff, One York Street Inc., brought a motion seeking production of the former counsel's file for the defendants, 2360083 Ontario Limited and LCIL Ltd., and other discovery-related orders.

The defendants had initially pleaded lack of legal advice regarding a lease and its extension, but later withdrew this pleading.

The plaintiff argued that the defendants had waived solicitor-client privilege by asserting affirmative defenses of misrepresentation and placing their state of mind in issue.

The court applied a two-step test for deemed waiver of privilege, finding that the legal advice was relevant to the defendants' reliance on alleged misrepresentations and that the defendants had made the receipt of advice an issue through their pleadings.

The court granted the motion for production of the Fogler's file, deeming privilege waived due to fairness considerations.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The applicant, operator of Sunset Manor long-term care home, sought judicial review of a Director's decision ordering the home to cease admitting new residents due to a risk of harm.

The applicant argued the decision was tainted by a reasonable apprehension of bias because one of the inspectors was a former employee, that it was denied procedural fairness, and that the decision was unreasonable.

The Divisional Court dismissed the application, finding no reasonable apprehension of bias, that the procedural fairness owed was met, and that the Director's decision was reasonable and justified based on a history of non-compliance.

The appellant appealed an Associate Justice's order dismissing a motion to correct the plaintiff's name in the title of proceedings based on misnomer.

The Associate Justice found that the defendants would not have reasonably understood that the proposed new plaintiff was the intended plaintiff, as the defendants had expressly refused to contract with that entity.

The Divisional Court found no palpable and overriding error in the Associate Justice's factual findings or application of the objective test for misnomer.

The appeal was dismissed.