Michael Kestenberg

The appellants sued their former lawyer and her firm for negligence, breach of fiduciary duty, and breach of contract, alleging she failed to proceed promptly with motions, incurred unnecessary costs, and obtained inadequate costs awards.

The trial judge dismissed the action, finding the lawyer was successful in her conduct of the litigation and was not responsible for the delays or the quantum of costs awarded.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusions and agreeing that expert evidence was required to establish the standard of care regarding a settlement offer.

The plaintiffs sued their former lawyer and her law firm for negligence, breach of fiduciary duty, and breach of contract, primarily alleging she mishandled a security for costs motion and other procedural steps, resulting in higher legal fees.

The court found that the action was essentially a fee dispute cloaked as a negligence claim.

The plaintiffs failed to tender expert evidence to establish the standard of care for the lawyer's advice, and the court found no clear error or egregious conduct in her handling of the file.

The action was dismissed, and the plaintiffs were ordered to pay $80,000 in costs on an elevated scale due to their improper motives in bringing the litigation.

Following the dismissal of the plaintiffs' professional negligence action as statute-barred, the successful defendant sought $15,000 in partial indemnity costs.

The court exercised its discretion under section 131(1) of the Courts of Justice Act and Rule 57.01 to deny costs to the successful defendant.

The court found that awarding costs would not advance the purposes of costs rules and would merely add insult to the injuries suffered by the plaintiffs due to the defendant's negligent and unprofessional conduct.

The defendant lawyer brought a motion for summary judgment to dismiss the plaintiffs' professional negligence action as statute-barred.

The plaintiffs retained the defendant in 2011, but the defendant failed to advance the action, leading to its administrative dismissal in 2012.

The plaintiffs discovered the defendant's negligence by the summer of 2016 but delayed commencing an action until November 2019, partly to pursue a Law Society complaint.

The court held that the limitation period began to run in the summer of 2016 when the plaintiffs had a plausible inference of liability, and that pursuing a regulatory complaint did not suspend the limitation period.

The motion was granted and the action dismissed.

The plaintiff successfully defended summary judgment motions brought by multiple defendants across several actions.

While costs were resolved with most defendants, the plaintiff sought costs against the defendants Helden and 131 Ontario for their involvement in the dismissed motions in the s. 38 BIA Action and the Copyright Action.

The court declined to award costs for the Copyright Action due to the defendants' limited involvement.

For the s. 38 BIA Action, the court found the defendants were passive participants who 'tagged along' with the primary moving parties.

The court apportioned 25% of the plaintiff's costs for that motion to these defendants, fixing the amount at $9,500 on a partial indemnity scale.

The plaintiff commenced four separate actions arising out of the bankruptcy and subsequent death of a lawyer.

The defendants brought motions for summary judgment to dismiss the actions, primarily arguing they were barred by the applicable limitation periods.

The court granted summary judgment dismissing the Bankruptcy Trustee Action and the Client Assigned Claims Action (with one minor exception), finding they were commenced after the expiry of the two-year limitation period and there was no genuine issue for trial regarding discoverability.

However, the court denied summary judgment for the s. 38 BIA Action and the Copyright Action, finding genuine issues requiring a trial regarding when the plaintiff knew or ought to have known of the injuries and whether the copyrighted materials were used during the relevant period.

A case conference was held to address multiple related actions.

On consent, the claims against Shahzad Siddiqui and Borden Ladner Gervais LLP were dismissed with prejudice and without costs.

The court directed counsel to confer regarding the potential release of individual defendants and established a timetable for scheduling upcoming dispositive motions.

A case conference was held to manage multiple related proceedings.

Counsel for the plaintiffs indicated a recommendation for the plaintiffs to agree to dismissals without costs in most cases, except potentially the claim against Grant Thornton LLP Canada, which requires leave to proceed.

The court directed that a new class action issued by one of the plaintiffs be case managed together with the existing matters.

Counsel were directed to advise on dismissals or agree on a timetable for dispositive motions by a specified date.

Following the dismissal of three related proceedings as an abuse of process, the successful defendants sought costs.

The court found that the plaintiffs' unfounded allegations of fraud and intentional wrongdoing, combined with their attempt to relitigate matters barred by prior releases, justified an elevated costs award.

The court awarded costs on a substantial indemnity basis, fixing the total amount at $227,532.72, apportioned among the plaintiffs and the various defendants to ensure proportionality and reasonableness.

The defendants brought motions for summary judgment to dismiss three proceedings commenced by the plaintiffs regarding a long-standing family business dispute.

The plaintiffs alleged fraud, conspiracy, and misappropriation of funds dating back to the late 1990s and early 2000s.

The court granted the motions, finding that the actions were an abuse of process as they attempted to relitigate issues that had been resolved in prior litigation and settlements.

The court also held that the claims were barred by broad releases signed by the plaintiffs in 2005, 2012, and 2015, and were statute-barred under the Limitations Act, 2002 and the Trustee Act.

The Grillone Defendants brought a motion under Rule 59.06 to set aside or stay a previous order granting a Mareva injunction, alleging fraud and newly discovered facts.

They claimed the plaintiffs intentionally withheld an exhibit to an affidavit that would have undermined the affiant's credibility.

The court dismissed the motion, finding that the allegedly withheld evidence did not go to the foundation of the case and could have been obtained with due diligence.

The court awarded partial indemnity costs to the plaintiffs.

The plaintiff, claiming to represent the Kinakwii Nation, sought to stop the enforcement of a mortgage by Farm Credit Canada by asserting Indigenous rights over the mortgaged land.

The defendants sought to dismiss the action as frivolous, vexatious, or an abuse of process under Rule 2.1.

The plaintiff requested an urgent case conference to schedule a motion to adjourn the upcoming Rule 2.1 review and summary judgment motion, citing the need to examine the Chief Justice of Canada and the Registrar of the Supreme Court of Canada.

The court refused to schedule the motion, noting that Rule 2.1 reviews are not evidentiary hearings and that the plaintiff's tactics resembled 'freeman on the land' arguments.

The court stayed the plaintiff's proposed motion pending a Rule 2.1.02 review.

The plaintiffs brought a Rule 21 motion to determine the effect of a Pierringer Agreement and a prior court order on the remaining claims against the non-settling defendant and subsequent third and fourth parties.

The court clarified that the prior order restricted the plaintiffs' claim against the remaining defendant to several liability, but did not affect the remaining defendant's ability to pursue contribution from third parties.

The motion was resolved with all parties ultimately agreeing on this interpretation, and costs were deferred to the pre-trial or trial judge.

The plaintiffs sued their former lawyers for professional negligence and breach of contract arising from their representation in an underlying employment and corporate dispute.

The defendant lawyers brought motions for summary judgment to dismiss the claims.

The court granted the motions, finding no genuine issue for trial because the plaintiffs failed to adduce expert evidence on the standard of care, the evidence showed the plaintiffs were advised of the litigation risks, and there was no evidence that the lawyers' conduct caused the plaintiffs' alleged damages.

The plaintiff, a real estate agent, brought a motion for summary judgment against her former brokerage for unpaid commissions and improperly deducted fees.

The brokerage argued the commission was subject to a referral agreement with an unlicensed third party and was being held in trust.

The court found that while an agreement to split the commission existed, it was unenforceable under the Real Estate Brokers Act, 2002, which prohibits paying commissions to unlicensed persons.

The court granted summary judgment to the plaintiff for the unpaid commission and the improperly deducted fees.

The trustee in bankruptcy brought a motion for a declaration that the bankrupt's interest in two properties, held in joint tenancy with his wife, were assets of the estate.

The bankrupt and his wife claimed the properties were held in trust for their children, relying on trust documents allegedly created in 1995 and 2004.

The trustee introduced uncontradicted expert evidence proving the fonts used in the documents did not exist on the dates they were allegedly signed.

The court found the trust documents were backdated and the trusts were shams, or alternatively fraudulent conveyances, designed to defeat creditors.

The declarations sought by the trustee were granted.

The defendant law firm, Perras Mongenais, brought a motion for partial summary judgment to dismiss the plaintiff's professional negligence claim against it.

The plaintiff alleged the firm provided negligent tax advice during his family law settlement negotiations.

The court found that the firm's advice was correct, clearly communicated, and strictly limited to the specific questions asked by the plaintiff's family lawyer.

The court engaged in a detailed analysis of the availability of partial summary judgment post-Hryniak, concluding that resolving the claim against this key party was proportionate and posed little risk of inconsistent findings.

The motion was granted and the action against Perras Mongenais was dismissed.

Following the dismissal of the plaintiff's solicitor negligence action on summary judgment, the successful defendant sought costs of approximately $47,000.

The defendant argued that costs should be based on the actual $350 hourly rate paid by LawPRO, suggesting this was equivalent to a partial indemnity rate for senior counsel.

The court rejected this approach, noting that awarding actual costs would improperly eliminate the distinction between partial and substantial indemnity scales.

Costs were fixed at $35,000 on a partial indemnity basis.

Appeal from a master's ruling on a refusals motion arising during examinations conducted under rule 39.03 of the Rules of Civil Procedure in connection with a motion for particulars.

The plaintiff argued that the defendants waived solicitor‑client privilege over their entire litigation file by filing an affidavit from counsel stating that the defendants lacked knowledge necessary to plead.

The court held that filing a solicitor’s affidavit results only in a limited waiver of privilege confined to matters directly placed in issue by the affidavit.

Solicitor‑client privilege remains fundamental and must be interpreted narrowly when assessing waiver.

The master correctly concluded that only documents connected to the affidavit’s subject matter were producible and that broader disclosure of the law firm’s entire file was not required.

A franchisee brought an action against the franchisor alleging failure to disclose material information under the Arthur Wishart Act in connection with a renewal of a franchise agreement and the franchisor’s requirement that the franchisee undertake costly renovations to convert its store to a sit‑down restaurant.

The franchisee claimed the renovations constituted a material change requiring disclosure and alleged breaches of good faith, damages for loss of the business, and lost profits.

The court held that the renovation program had been disclosed and known to the franchisee since before the original franchise agreement and therefore did not constitute a material change at renewal within the meaning of the Arthur Wishart Act.

The court further found the franchisor acted in good faith and made multiple reasonable accommodations and offers to the franchisee.

In any event, the franchisee failed to mitigate its damages by refusing to return to operate the store for the remaining term of the agreement.

The action was dismissed.