Melvyn Lloyd Solmon

The defendants moved for summary judgment dismissing a solicitor’s negligence claim arising from a commercial real estate transaction involving a building encroaching on a municipal laneway.

The plaintiffs alleged their lawyers failed to warn that the municipality might require payment to convey the laneway and that the title insurance obtained did not cover such a cost.

The court rejected arguments that the claim was statute‑barred and held that expert evidence was unnecessary because the failure to warn of a significant legal risk was apparent on the record.

Applying the “but for” causation test, the court found that had proper advice been given the plaintiffs likely would have sought protection such as a holdback or price abatement.

The motion for summary judgment was dismissed and partial summary judgment was granted to the plaintiffs, leaving only the assessment of damages and the claim against the title insurer for trial.

The applicant brought a motion under Rule 49.09 of the Rules of Civil Procedure seeking judgment enforcing a settlement agreement allegedly reached through email correspondence.

The respondents argued the purported settlement was conditional upon financial documentation substantiating specific “inflows and outflows” related to investments in a failed business venture and that the documentation provided did not support those representations.

The court held that the moving party bears a heavy burden on a Rule 49.09 motion and that the motion should be approached similarly to summary judgment, requiring the absence of genuine issues for trial.

Given conflicting affidavit evidence, disputed financial records, and credibility issues regarding losses, inventory values, and completeness of production, the court concluded that a full appreciation of the evidence required a trial.

The court therefore declined to enforce the alleged settlement.

Following the granting of summary judgment dismissing libel actions against certain defendants, the court reconsidered the appropriate costs award.

The defendants argued that an early offer to settle should justify full or substantial indemnity costs after the plaintiffs refused the offer and ultimately lost on summary judgment.

The court held that the offer did not trigger Rule 49 cost consequences because it expired before the hearing, but it could still be considered under the court’s discretion under s. 131 of the Courts of Justice Act and Rule 57.01.

The court found no reprehensible or unreasonable conduct warranting full or substantial indemnity costs but concluded the early offer should have prompted a careful reassessment of the claim.

The costs award was therefore increased from $25,000 to $35,000.

The moving defendants brought summary judgment motions seeking dismissal of defamation actions arising from an internal investigative firm newsletter describing an investigation into alleged unauthorized retransmission of satellite television signals in apartment buildings.

The plaintiffs alleged the article defamed them and that the moving defendants conspired with the investigation firm to publish it.

The court found no evidence linking the moving defendants to the creation or publication of the article and held that the record did not support conspiracy or vicarious liability.

The court also rejected arguments that unanswered questions on cross‑examination created adverse inferences.

Summary judgment was granted dismissing the actions against the moving defendants, with costs awarded.

The defendants appealed a master's order dismissing their motion to compel answers to a demand for particulars in an action alleging fraud and misrepresentation.

The motion had been dismissed because the defendants did not file an affidavit stating that the requested particulars were necessary to plead.

The court held that under Rule 25.06(8) of the Rules of Civil Procedure, full particulars are mandatory where fraud is alleged and affidavit evidence from the moving party is not required to obtain them.

The court further held that the plaintiffs’ affidavit of documents and production of extensive documentation did not sufficiently identify the specific fraudulent acts alleged.

The appeal was allowed and the plaintiffs were ordered to provide detailed particulars of each alleged fraud.

The plaintiff brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to examine opposing litigation counsel under Rule 39.03 in connection with a forthcoming motion for particulars.

The motion arose after cross‑examination revealed that the affiant, a lawyer at the plaintiff’s firm, lacked personal knowledge of key factual assertions in her affidavit and had relied on information prepared by counsel.

Applying the factors articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd., the court held the proposed examination was relevant, arose from matters uncovered during cross‑examination, would not cause non‑compensable prejudice, and could not reasonably have been sought earlier.

The court further held that proportionality and a contextual approach supported allowing the examination where the relevant information was uniquely within counsel’s knowledge.

Leave to examine the lawyer was therefore granted, with costs reserved.

The applicant, a creditor of the debtor company under CCAA protection, sought an order authorizing it to file a plan of compromise or arrangement and directing meetings of affected creditors to vote on the plan.

The proposed plan did not include a shareholder vote.

The debtor opposed the application, arguing the plan was not in the best interests of stakeholders and improperly excluded shareholders.

The court found that because the debtor's shares had potential equity value depending on the outcome of pending litigation, and the proposed plan would radically alter the economic prospects of the shares, a shareholder vote was required.

The application to order a meeting of creditors without a shareholder vote was denied.

Following the dismissal of defendants’ summary judgment motions and related motions to set aside an Anton Piller order, the court addressed the issue of costs.

The defendants had argued the plaintiff’s action was barred by limitation periods under s. 18(5) of the Radiocommunication Act and the Ontario Limitations Act and sought dismissal on summary judgment.

The court held that the motions were unreasonable given the extensive factual disputes, credibility issues, and evidentiary record requiring trial under the “full appreciation test” articulated in Combined Air Mechanical Services Inc. v. Flesch.

The defendants also unsuccessfully sought to challenge the Anton Piller order.

Costs were therefore awarded to the plaintiff on a substantial‑indemnity basis.

The trustee in bankruptcy suspected the bankrupt was hiding assets using a third party.

The trustee sought an order compelling the bankrupt and his lawyer to disclose the identity of the person paying the bankrupt's legal fees for a previous motion.

The motion judge granted the order, finding the information was not privileged.

On appeal, the Court of Appeal allowed the appeal, holding that administrative information relating to the solicitor-client relationship, including the identity of the person paying the lawyer's bills, is presumptively privileged.

The court found the presumption was not rebutted because the information was relevant to the merits of the underlying dispute and its disclosure would reveal confidential communications.

The defendants brought motions to set aside an Anton Piller order and to exclude evidence obtained under it, and also sought summary judgment dismissing the action on limitation grounds.

The action alleged an unauthorized SMATV scheme distributing encrypted satellite television programming to hundreds of tenants using residential subscriber accounts, contrary to the Radiocommunication Act, contract, and tort principles.

The court held that the plaintiff established a strong prima facie case and that the Anton Piller order was properly granted, finding no failure of full and frank disclosure.

The court also found that complex factual disputes, credibility issues, and allegations of fraudulent concealment prevented determination of limitation defences on summary judgment.

Both the motions to set aside the Anton Piller order and the motions for summary judgment were dismissed.

The defendants moved to set aside a Mareva injunction granted ex parte that froze their assets in relation to allegations that interest payments received as trustee under a debenture had not been forwarded to the plaintiff debenture holder.

The defendants argued the injunction should be rescinded because the plaintiff failed to provide full and fair disclosure on the ex parte motion and lacked a strong prima facie case.

The court reviewed the disclosure obligations on ex parte motions and the test for material non-disclosure.

It found that the alleged omissions were either immaterial or adequately disclosed and that the evidence supported a strong prima facie case that trust funds had been misapplied.

The motion to set aside the Mareva injunction was therefore dismissed.

The appellant signed a guarantee included within a registered mortgage document.

Following a default and power of sale resulting in a deficiency, the mortgagee sued the appellant on the guarantee.

The appellant moved for summary judgment, arguing the action was statute-barred under the two-year limitation period for demand obligations in the Limitations Act, 2002.

The motion judge dismissed the motion, finding the ten-year limitation period under the Real Property Limitations Act applied.

The Court of Appeal upheld the decision, confirming that guarantees found in a mortgage instrument are governed by the Real Property Limitations Act.

The respondent commenced an action alleging the appellants fraudulently obtained and illegally transmitted its satellite programming to apartment tenants.

The appellants moved to stay the action under s. 7(1) of the Arbitration Act, relying on an arbitration clause in the residential subscriber agreement.

The Court of Appeal upheld the motion judge's dismissal of the stay, finding the appellants could not invoke the arbitration clause without acknowledging they were parties to it.

The Court also agreed that a partial stay under s. 7(5) was inappropriate as it would cause a multiplicity of proceedings, given that only a few of the 23 defendants were potentially bound by the agreement.

This is a preliminary motion ruling on appeals of Compliance Audit Committee decisions to order compliance audits of election campaign finances.

The appellants sought to have the appeals conducted as hearings de novo, while the respondents and the Committee argued the appeals should be limited to a review of the record.

The court determined that absent a clear statutory mandate to the contrary, appeals must take the form of a review of the record rather than de novo hearings.

The court rejected arguments that deficiencies in the record, the Committee's failure to provide reasons, or the prematurity of the audit application warranted a de novo hearing format.

The moving parties sought costs on a full indemnity basis following a motion involving a certificate of pending litigation, arguing that the opposing party engaged in material non‑disclosure on an ex parte motion and breached the deemed undertaking rule.

The responding party argued that any non‑disclosure was inadvertent and that the alleged breaches were not sufficiently serious to justify substantial or full indemnity costs.

The court reiterated that substantial indemnity costs are reserved for rare and exceptional cases involving reprehensible conduct.

Finding that the conduct did not meet that threshold, the court declined to award full indemnity costs.

Instead, the moving parties were awarded partial indemnity costs in the amount reflected in their bill of costs.

Following a prior order requiring disclosure of the identity of a person who paid the bankrupt's legal fees, the court addressed the appropriate costs award.

The trustee sought substantial indemnity costs, arguing the bankrupt’s earlier motion lacked merit, while the bankrupt requested that no costs be awarded due to the allegedly novel legal issue.

The court held that the bankrupt’s position on privilege, although unsuccessful, was arguable and did not justify substantial indemnity costs.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court concluded that costs should follow the event but that the amount sought was excessive.

The court fixed partial indemnity costs payable by the bankrupt to the trustee at $7,000 inclusive of disbursements and HST.

A secured lender applied for the appointment of a receiver over companies engaged in sub‑prime vehicle financing, while the debtor companies brought a cross‑application seeking protection under the Companies’ Creditors Arrangement Act.

The court considered the statutory tests under the Bankruptcy and Insolvency Act and the Courts of Justice Act for appointing a receiver and assessed the parties’ conduct, the deterioration of the secured creditor’s collateral, and the lack of available operating financing.

The debtor companies had made material misrepresentations regarding their financial position and had repeatedly failed to meet repayment deadlines despite forbearance arrangements.

The court found that appointing a receiver was just and convenient to preserve and realize on the secured creditor’s collateral.

The court also refused CCAA relief because the debtors had no restructuring plan or “germ of a plan,” and the major secured creditors opposed any arrangement.

The defendants brought a motion for leave to appeal an interlocutory order that declined to strike out claims of conspiracy and negligence against individual defendants.

The court found that the proposed appeal did not meet the test under Rule 62.02 of the Rules of Civil Procedure, as there were no conflicting decisions and the discrete pleading issues did not transcend the interests of the parties.

The motion for leave to appeal was dismissed.

The respondent, a former bankrupt, brought a motion to dismiss the appellant's appeal of three costs orders.

The appellant cross-moved for leave to appeal.

The Court of Appeal dismissed the appeal in respect of the first two costs orders, finding they had either been finally disposed of previously or were significantly out of time with no satisfactory explanation for the delay.

The Court granted leave to appeal the third costs order but ordered the appellant to post $75,000 in security for costs within 30 days, failing which the remainder of the appeal would be dismissed.

The appellant appealed a decision regarding whether a letter sent by its counsel constituted a proper tender to stop the running of interest and entitle it to a mortgage discharge.

The Court of Appeal dismissed the appeal, finding the tender was defective because it was not an unconditional offer to pay and the proposed costs were to be held in trust for the appellant rather than the respondent.

The respondent was awarded costs of the appeal on a substantial indemnity basis.