Michael E. Girard

At the opening of trial, the plaintiff and self-represented Third Party sought leave to admit late expert evidence under Rule 53.03(4) and an adjournment of the trial.

The professional negligence claim, involving tax returns and CRA re-assessments, had been ongoing for nine years.

The plaintiff, having been represented by multiple lawyers, acknowledged the need for new counsel to properly present the complex case, especially given the preliminary nature of the expert report.

The court granted leave for the expert report and adjourned the trial, striking it from the list, to allow the plaintiff to retain counsel and properly prepare, while also ensuring fairness to the defendant by awarding costs thrown away and setting a deadline for expert reports.

The Court of Appeal for Ontario issued a costs endorsement following an appeal that partially reduced damages awarded to the respondents at trial.

The appellants argued that the reduced award, falling below their pre-trial Offer to Settle, should significantly impact the trial costs.

The court, considering the divided success at trial, the unrealistic claims made by both parties, and the prolonged litigation, set aside the trial judge's costs award and ordered that the parties bear their own costs for the trial level.

The appellants were awarded agreed-upon costs for the appeal.

This appeal concerned a dispute between an accountant and an accounting firm regarding compensation for work performed and entitlement to work in progress (WIP).

The appellants, the accounting firm and its principal, challenged the trial judge's findings on client ownership, the calculation of the accountant's 2014 compensation, and her entitlement to WIP.

The Court of Appeal upheld the trial judge's finding that the clients were the accountant's own, but found errors in the calculation of 2014 compensation due to lack of evidentiary support and in the award for WIP due to double-counting.

The appeal was allowed in part, reducing the compensation owed and reversing the WIP award.

The appellant, a former nurse, appealed the dismissal of her motion for a declaration that her insurer (HIROC) owed her a duty to defend against multiple civil actions.

These underlying actions alleged the tort of intrusion upon seclusion, negligence, breach of statute, and breach of fiduciary duty, stemming from her unauthorized access of patient records to obtain narcotics.

The Court of Appeal upheld the motion judge's decision, finding no duty to defend.

The court affirmed that the tort of intrusion upon seclusion, whether intentional or reckless, involves conduct that is not "accidental" and thus falls outside the policy's definition of "occurrence" and within the intentional act exclusion.

The court also rejected the argument that denying coverage for intentional privacy breaches would nullify the policy, as it still covered negligent privacy breaches.

This is a costs endorsement following an appeal.

The appellant, Felicia Vacaru, was unsuccessful in her appeal.

The respondent, Marmer Penner Inc., was awarded costs on a partial indemnity scale, fixed at $17,500, inclusive of taxes and disbursements.

Felicia Vacaru appealed a trial judgment that found her liable to Marmer Penner Inc. for outstanding forensic accounting fees and dismissed her crossclaim against her former lawyers, Legge & Legge and John Legge, for negligence.

Vacaru also sought to adduce fresh evidence on appeal and leave to appeal costs.

The Court of Appeal dismissed the motion to adduce fresh evidence, finding it inadmissible hearsay or irrelevant, and dismissed both appeals, upholding the trial judge's findings of fact regarding the fee agreement and the dismissal of the negligence crossclaim due to lack of breach of standard of care, causation, and limitation period issues.

Leave to appeal costs was also denied.

The plaintiff accountant joined the defendant accounting firm under an unwritten resource-sharing or partnership arrangement.

After the relationship broke down, the plaintiff sued for unpaid compensation and the return of a capital contribution, while the defendants counterclaimed for misrepresentation, breach of fiduciary duty, and defamation.

The court found an implied agreement for compensation based on the parties' conduct and awarded the plaintiff $71,223 for unpaid 2014 compensation plus the return of her $40,000 capital contribution.

However, the court also found that the plaintiff defamed the defendants by calling them 'crooks' to a client, awarding the defendants $30,000 on their counterclaim.

The plaintiffs, having succeeded in a solicitor's professional negligence trial and awarded $425,987 in damages, sought costs on a partial and substantial indemnity basis.

The court considered the plaintiffs' valid Rule 49 offer to settle and the complexity of the underlying action.

While acknowledging the plaintiffs' entitlement to costs, the court applied a 25% reduction to the legal fees based on the principle of proportionality and the reasonable expectations of the unsuccessful party, despite finding the hourly rates charged by counsel and staff to be reasonable.

The plaintiff moved for an order compelling the defendant to produce a further affidavit of documents and, subsequently, to inspect the defendant's computer hard drive after learning the defendant destroyed its working paper file.

The court granted the order for hard drive inspection, citing the unusual circumstances of the defendant destroying relevant evidence in the face of fraud allegations and inconsistent testimony, and dismissed the request for a further affidavit of documents without prejudice.

An accounting firm filed a corporate client's tax returns after the due date, resulting in the denial of approximately $550,000 in tax credits by the Canada Revenue Agency.

The client received notices of assessment in April 2010 and pursued administrative remedies through the CRA appeal process, with the accountant's assistance, until May 2011 when the CRA advised it intended to confirm the assessments.

The client commenced a negligence action in August 2012.

The motion judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discoverable in April 2010.

The Court of Appeal allowed the appeal, holding that the claim was not discovered until May 2011 when the CRA appeal process concluded, as it would not have been appropriate to commence proceedings while alternative remedies remained available.

The parties in multiple related actions jointly consented to have their actions case managed by a case management Master under Rule 77.05 of the Rules of Civil Procedure.

The court, satisfied that the criteria under Rule 77.05(4) were met, referred the matter to Master McAfee for assignment of a case management master.

The defendants, an accounting firm and an individual accountant, brought a motion for summary judgment to dismiss the plaintiff's professional negligence claim based on the Limitations Act, 2002.

The plaintiff alleged that the defendants' failure to timely file tax returns resulted in the loss of refundable dividend tax on hand (RDTOH) and associated penalties and interest.

The court considered whether the plaintiff's claim was discoverable more than two years prior to its commencement on August 1, 2012.

The court found that the plaintiff had sufficient knowledge of the injury, its cause, and the identity of the wrongdoers by June 2010 at the latest, and that a proceeding would have been a legally appropriate means to seek a remedy at that time, despite ongoing mitigation efforts and the defendants' failure to advise of a potential claim against them.

The court dismissed the plaintiff's arguments regarding prematurity, fraudulent concealment, and estoppel.

The plaintiff invested in a limited partnership that purchased shares of a private corporation.

The investment failed, and the plaintiff sued the promoters, a minority shareholder who sold his shares, and the valuators who appraised the shares.

The minority shareholder and the valuators brought motions for summary judgment.

The court granted the motions, finding no evidence that the minority shareholder participated in any conspiracy or breached securities laws.

The court also found that the valuators owed no duty of care to the plaintiff, the plaintiff did not rely on the valuation, and any claim for negligent valuation belonged to the limited partnership under the rule in Foss v. Harbottle.

The plaintiff commenced an intended class proceeding against the Crown arising from a criminal proceeding where his Charter rights were infringed due to an incompetent interpreter.

The Crown brought a motion to dismiss the action on the basis that the plaintiff failed to provide the requisite 60 days' written notice under s. 7(1) of the Proceedings Against the Crown Act.

The plaintiff argued that a release signed in relation to a costs settlement in the criminal matter, along with the application record and factum, constituted sufficient notice.

The court held that the documents did not provide sufficient particulars to identify the occasion out of which the civil claim arose, leaving the Crown to guess its potential liability.

The action was dismissed as a nullity.

The applicant, a chartered accountant, sought judicial review of a decision by the Institute of Chartered Accountants of Ontario's Discipline Committee finding him guilty of professional misconduct for failing to cooperate with an investigation.

The investigation stemmed from a complaint that the applicant helped a client conceal income in a matrimonial dispute.

The applicant argued that the investigating committee breached its duty of fairness by expanding the investigation without notice and breached its disclosure obligations by not providing the preliminary investigative report.

The Divisional Court dismissed the application, finding no evidence that the investigation had expanded and holding that there was no obligation to disclose the preliminary report during an ongoing investigation.

The appellants appealed the motion judge's refusal to set aside an earlier order, the ruling that rule 11.02 did not apply, and the decision to strike their pleadings for non-compliance with a previous order.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decisions given the unexplained three-month delay in bringing the motion and the appellants' extensive delays in the action.

The appellants appealed a summary judgment dismissing their action against a bank and its employees for breach of contract and negligent misrepresentation.

The appellants alleged the bank made oral commitments to provide additional financing and release a guaranteed investment certificate, which induced them to enter into a loan agreement.

The Court of Appeal dismissed the appeal, finding that the appellants failed to produce documentary evidence to support their claims and that the alleged oral agreements contradicted the clear terms of the written loan documents, thus violating the parol evidence rule.

The court concluded there was no genuine issue for trial.

Appeal in a professional negligence action against an accountant arising from a review engagement for a retail business that failed to remit over $1 million in provincial retail sales tax.

The court held the accountant owed a duty to exercise reasonable skill and care and breached the applicable standard by failing to make intelligent inquiries about glaring discrepancies between sales and remittance figures, particularly given the client's prior audit history.

A contractual exclusion clause did not shield the accountant because it operated only where the review engagement was conducted in accordance with applicable standards.

The appellant could recover losses tied to penalty, assessed interest, and non-recoverable income tax consequences, but not post-assessment borrowing costs or professional fees; damages were reduced by 50 per cent for contributory negligence.