Michael B. Lesage

The appellants appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, which sought to dismiss a counterclaim brought against them by the respondents.

The motion judge found that the appellants' expression did not relate to a matter of public interest, failing the initial threshold for an anti-SLAPP motion.

The Court of Appeal upheld this decision, concluding that the appellants' expressions were primarily concerned with private property interests (e.g., tree protection, fencing, sightlines) related to an adjacent retirement facility development, rather than broader public concerns, despite the development itself having public interest aspects.

The court affirmed the deferential standard of review for a motion judge's finding on whether an expression relates to public interest and confirmed that the motion judge did not err by considering the context of the expressions without impermissibly assessing motivations.

The defendants, a law firm and its lawyers, brought a motion for summary judgment to dismiss a $20 million action for breach of contract, breach of fiduciary duty, and negligence brought by their former clients.

The plaintiffs alleged that the defendants conspired with the opposing party in a prior wrongful dismissal action and negligently advised them, leading to an improvident settlement.

The court granted summary judgment, finding no genuine issue for trial.

It held that the plaintiffs failed to establish a conflict of interest or professional negligence, and that the settlement was not improvident given the risks of continued litigation.

The appellants appealed a judgment dismissing their claim regarding a conflict of interest by their former counsel.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that the respondents, acting as counsel for both the appellant company and its insurer, were not in a conflict of interest because they timely withdrew their representation of the plaintiffs.

Costs were awarded to the respondents.

The plaintiff, Namena Corp., brought a motion seeking to strike the statement of defence and counterclaim of Mr. Sivarajah for failing to answer discovery questions, or alternatively, to compel reattendance at discovery and for Rule 30.10 relief for third-party production.

The court denied the motion to strike the pleadings, finding that the defendants' conduct did not warrant such a severe remedy, noting that undertakings had been complied with and some refusals were reasonably defended.

The court ordered Mr. Sivarajah to reattend discovery to answer specific questions regarding bank statements and the identity of a company that performed NPN registrations, but not to recreate master manufacturing documents or disclose tax returns.

The Rule 30.10 motion for third-party production was granted for Health Canada, Omega, and Reva, with a conditional order for Quality.

Costs were awarded to the plaintiff, reflecting divided success and delays caused by both parties.

The appellants appealed a trial judge's decision that struck out a default judgment and statement of claim as an abuse of process, found overpayment on a mortgage due to fraud, and awarded damages.

The trial judge's decision relied in part on prior Financial Services Tribunal findings of fraudulent conduct by the appellant mortgage broker.

The appellants challenged the striking out of the judgment/claim, the trial judge's credibility findings, and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings, noting that the appellants' counsel had consented to the judge hearing the case despite prior dealings, and found no evidence of bias.

This decision concerns the costs of an anti-SLAPP motion brought by Eleanor and Patrick Coulson to dismiss a counterclaim by Alexander Muskoka (Gravenhurst) Inc. et al.

The Coulsons' motion was dismissed as they failed to establish the public interest threshold under s. 137.1(3) of the Courts of Justice Act.

Alexander Muskoka (Gravenhurst) Inc. sought partial indemnity costs.

The court, applying the presumption against costs in s. 137.1(8), declined to award costs to the responding party.

The judge found that the Coulsons had an arguable case, did not bring the motion for improper purposes, and that the counterclaim itself bore hallmarks of a SLAPP.

Consequently, each party was ordered to bear their own costs.

The applicants, Eleanor and Patrick Coulson, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a counterclaim by the respondents, Alexander Muskoka (Gravenhurst) Inc. et al., arguing it was a Strategic Lawsuit Against Public Participation (SLAPP).

The counterclaim alleged breach of Minutes of Settlement by the Coulsons for opposing a retirement residence development.

The court found that while the development itself was a matter of public interest, the specific expressions made by the Coulsons, which formed the basis of the counterclaim, were primarily about their private property interests (e.g., trees, sightlines, property boundaries) and compliance with the Minutes of Settlement, rather than broader public concerns.

Therefore, the Coulsons failed to meet the threshold burden of proving that their expressions related to a matter of public interest, and the motion to dismiss the counterclaim was dismissed.

The appellant, OZ Optics Ltd., appealed the dismissal of its action against two former general counsel, Diane Lesley Evans and Samuel Edgar Schwisberg, following a successful motion for summary judgment.

The action alleged breach of contract, breach of fiduciary duty, conspiracy, and negligent performance of service.

The Court of Appeal dismissed the appeal from the bench, upholding the motion judge's findings that the claims were amenable to summary judgment, that Evans's actions did not constitute a breach or cause loss, and that Schwisberg's obligations under a holdover clause were absolved by the appellant's actions.

Costs were awarded to the respondents.

The defendant lawyers, Emond Harnden LLP, Porter W. Heffernan, and Sebastien Huard (the “EH Defendants”), moved for summary judgment to dismiss an action brought by their former clients, OZ Optics Ltd. and Omur Sezerman.

The plaintiffs alleged that the EH Defendants were in a conflict of interest while representing them in an earlier proceeding, specifically regarding a joint retainer with their insurer, XL Insurance PLC, and the plaintiffs' insistence on a non-monetary settlement term (an apology).

The court found no inherent conflict in the joint retainer and determined that a reasonable apprehension of conflict did not arise until the plaintiffs' non-monetary term was definitively rejected by the opposing party.

The court concluded that the EH Defendants withdrew in a timely and justified manner due to a breakdown in the solicitor-client relationship, not a conflict of interest.

The motion for summary judgment was granted, dismissing the plaintiffs' claims, and costs were awarded to the EH Defendants.

The defendants brought a motion to set aside a default judgment obtained by the plaintiff in a mortgage action.

The court considered the factors for setting aside default judgment under Rule 19.08(2), including the explanation for delay, promptness of the motion, and the merits of the defence.

While the corporate defendant was found liable for the principal mortgage amount, the court partially set aside the judgment against the corporation regarding interest rates and other charges, and fully set aside the judgment against the individual defendants concerning personal guarantees, imposing terms for compliance.

The defendants were successful on their motions for summary judgment dismissing the plaintiff's action.

They sought costs on a substantial indemnity basis, arguing the plaintiff made unsubstantiated allegations of intentional wrongdoing.

The court found the plaintiff's conduct did not rise to the egregious level required for substantial indemnity costs and awarded costs on a partial indemnity basis.

The court rejected the plaintiff's argument that the costs should be reduced because there were two defendants, noting the plaintiff chose to sue both.

The court awarded $32,000 to one defendant and $30,000 to the other.

The plaintiff corporation sued its former in-house counsel for breach of contract, breach of fiduciary duty, negligence, and conspiracy to injure, alleging they improperly withdrew as counsel of record in an ongoing litigation and disparaged the plaintiff's principal in internal emails.

The defendants moved for summary judgment.

The Superior Court of Justice granted the motions and dismissed the action, finding no genuine issue requiring a trial.

The court held that the defendants did not breach any duties, as one defendant was medically required to withdraw following a stroke, and the other properly resigned due to a breakdown in the solicitor-client relationship.

Furthermore, the plaintiff failed to prove any damages or conspiracy.

Following a judgment on the merits, the successful defendant sought costs on a substantial indemnity basis due to the plaintiffs' and a non-party's vexatious conduct.

The court agreed that substantial indemnity costs were warranted, but reduced the requested amount by $15,000 to sanction the defendant's own witness for frustrating an examination.

Costs were fixed at $39,803.89, payable jointly and severally by the plaintiffs and the non-party.

Following the dismissal of the plaintiffs' action for specific performance due to egregious litigation misconduct, the defendant brought a motion seeking forfeiture of a $200,000 deposit and an order making the non-party principal of one of the plaintiffs personally liable for costs.

The court found that the plaintiffs' destruction and concealment of evidence made it impossible to determine who was at fault for the failed real estate transaction, warranting an adverse inference that the plaintiffs were not ready, willing, and able to close.

The court ordered the deposit forfeited to the defendant and held the non-party principal jointly and severally liable for costs due to his abusive litigation conduct, including the concealment of a related lawsuit between the plaintiffs.

The plaintiffs sought summary judgment for damages and release of a deposit following a failed real estate transaction, while the defendant counterclaimed for the deposit's return.

The transaction failed because the defendant discovered undisclosed TransCanada Pipeline (TCPL) easements, including one under the pool and cabana, which allowed TCPL to demand their removal and was subject to ongoing litigation.

The court found that the plaintiffs failed to disclose material information regarding the easements and related litigation, which materially affected the property's use and violated the Agreement of Purchase and Sale's title provisions.

Summary judgment was granted in favour of the defendant, ordering the return of the deposit.