Michael Kestenberg

On a summary judgment motion brought by solicitor defendants in a professional negligence and fiduciary duty action arising from an individual pension plan transaction, the court held the record could not satisfy the full appreciation test under rule 20.

The court found multiple triable issues, including the scope of an unwritten retainer, whether there was a duty to inform and warn the client about IPP compliance requirements, and whether a conflict of interest arose from repeated referral arrangements.

The court also found factual disputes regarding reliance on third-party experts and the solicitor's role in structuring and signing foundational corporate documentation.

Summary judgment was refused and the action, including cross-claims, was directed to proceed to trial.

The plaintiffs were defrauded of $1.3 million by a promoter who instructed them to deposit funds into a law firm's trust account.

The funds were subsequently disbursed on the promoter's instructions.

The plaintiffs sued the law firm and the responsible lawyer for negligence and breach of trust.

The defendants moved for summary judgment.

The court granted the motion, finding that the lawyers owed no duty of care to the non-client plaintiffs, as there was no proximity and the plaintiffs' reliance was not reasonable.

The court also found no fiduciary duty existed.

The defendant solicitors brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiffs cross-moved, arguing the limitation period did not commence until a 2009 court decision confirmed the error in a real estate statement of adjustments.

The court found that a reasonable person in the plaintiffs' position would have known of the potential claim when a related lawsuit was commenced in September 2006.

The court granted the defendants' motion, dismissing the action as statute-barred and an abuse of process, and awarded costs to the defendants.