Michael R. Kestenberg

The moving parties sought an order under Rule 2.1.01 of the Rules of Civil Procedure dismissing the appellants' appeal.

The underlying action, which alleged fraud against opposing counsel from previous litigation, had been dismissed as a frivolous and vexatious collateral attack on prior court orders.

The Court of Appeal agreed that the action and the subsequent appeal were devoid of merit and constituted an abuse of process.

The motion was granted and the appeal was dismissed.

The appellants commenced a professional negligence action against their former legal counsel in March 2023.

The respondents successfully moved for summary judgment on the basis that the claim was statute-barred, as the appellants had threatened negligence proceedings in March 2019.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellants knew or ought to have known of the material facts supporting their claim more than two years before commencing the action.

A private lending company brought claims against a law firm and associate lawyer for professional negligence, negligent misrepresentation, and breach of contract arising from a mortgage transaction.

The defendants moved for summary judgment to dismiss the claims.

The court found that while the defendants owed a narrow duty of care to the plaintiff based on their legal opinion letter, the plaintiff failed to provide expert evidence regarding the standard of care required of solicitors conducting mortgage transactions.

Additionally, the plaintiff failed to provide evidence of damages.

The court granted summary judgment dismissing the claims against the defendants, finding no genuine issue requiring trial.

The defendant Rhonda Niles brought a motion under Rule 42.02 to discharge a certificate of pending litigation (CPL) registered against her property at 55 Avenue Road, Toronto.

The CPL was obtained ex parte by the plaintiff in December 2017.

Ms. Niles argued that the plaintiff failed to provide full and frank disclosure of material facts when obtaining the CPL.

The court found three instances of material non-disclosure: (1) the affiant asserted personal knowledge when the evidence was based on information and belief; (2) the affiant mischaracterized the defendant's financial independence and income sources; and (3) the affiant failed to disclose material facts regarding the property's acquisition and financing.

Although Ms. Niles delayed seven years before bringing the motion, the court exercised its equitable discretion to grant relief, considering the plaintiff's failure to make full and frank disclosure, the plaintiff's lack of diligence in prosecuting the action, and the tenuous connection between the defendant's property and the alleged misappropriated funds.

The CPL was discharged and costs awarded to the defendant.

The plaintiff lender brought a motion for summary judgment on a collateral mortgage registered on the defendants' home.

The defendants counterclaimed alleging undue influence and unconscionability.

The court dismissed the lender's motion, finding genuine issues for trial regarding the interplay between undue influence, unconscionability, and independent legal advice.

The court also dismissed the motion of the defendants' son's lawyer, finding genuine issues regarding a conversation with the defendant.

However, the court granted summary judgment in favour of a lawyer friend of the son who had minimal involvement, finding no basis for liability.

The defendant Gowling WLG brought a motion under Rule 2.1.01 seeking to dismiss the plaintiff's action as frivolous, vexatious, and an abuse of process.

The plaintiff sought to challenge the conduct of Gowling in representing Home Trust in a prior mortgage action that resulted in summary judgment against the plaintiff.

The court found that the plaintiff's claim against Gowling was a collateral attack on the prior judgment, that Gowling was protected by absolute privilege, that Gowling owed no duty of care to the plaintiff, and that commencing an action against opposing counsel constitutes an abuse of process.

The action against Gowling was dismissed.

The plaintiffs, TDCI Bracebridge Inc., Beaver Valley Holdings Limited, and Premiere Self Storage Inc., brought claims against Thomas Sheppard and Heel Strike Corporation for negligence, breach of fiduciary duty, and related causes of action arising from mortgage transactions and the management of a development property.

The defendants moved for summary judgment, arguing the claims were statute-barred and, in part, without merit.

The court dismissed the motion to dismiss the claims against Sheppard as statute-barred, but granted summary judgment dismissing the claims regarding payments to Heel Strike and the negligence claim by Premiere Self Storage Inc., finding no genuine issue requiring a trial on those issues.

The court considered a request by the defendants to dismiss the plaintiff’s action as frivolous, vexatious, or an abuse of process under Rule 2.1.01(1) of the Rules of Civil Procedure.

The court found it may be appropriate to make such an order, as the claim appeared to attempt to re-litigate issues already decided and to seek liability against a law firm for its representation in a prior summary judgment motion.

The court directed the registrar to give notice to the parties and outlined the procedures for written submissions under Rules 2.1.01(8) and (9).

The proceeding is automatically stayed pending the court’s decision.

This costs endorsement follows the granting of summary judgment in favour of the defendants, dismissing the plaintiffs’ claim.

The court addresses the appropriate quantum of costs, considering the parties’ submissions, the principle of proportionality, and the conduct of the litigation.

The court finds the defendants’ costs claim largely reasonable, with a minor reduction for a docketing error, and orders the plaintiffs to pay $43,500 in costs on a partial indemnity basis.

The plaintiffs, Maryam Furney and Aidan Alex Fitzgerald Furney, brought a claim against their former counsel, Robins Appleby LLP and several lawyers, alleging negligence and conflict of interest.

The defendants moved for summary judgment, arguing the claim was statute-barred, unsupported by expert evidence, and lacking proof of damages.

The court found the claim was statute-barred under the Limitations Act, 2002, and that the plaintiffs failed to provide evidence of a breach of the standard of care.

The motion for summary judgment was granted and the claim dismissed.

The court dismissed Douglas LaFramboise’s action against Robert Kostyniuk as an abuse of process under Rule 2.1.01.

The claim arose from a prior action in which Kostyniuk, as counsel for Sylvia Zwaan, obtained judgment against LaFramboise for unlawful conversion.

The court found that LaFramboise’s new action was a collateral attack on prior decisions, was barred by absolute privilege, and that Kostyniuk owed no duty of care to LaFramboise.

The court emphasized the robust application of Rule 2.1 to prevent frivolous or vexatious litigation.

The appellant commenced an action against opposing counsel from a previous proceeding, seeking punitive damages and a direction for Law Society disciplinary proceedings.

The motion judge struck the claim as disclosing no reasonable cause of action.

The appellant appealed.

The respondent requested the appeal be dismissed under Rule 2.1.01.

The Court of Appeal dismissed the appeal as frivolous, vexatious, and an abuse of process, noting the absence of a duty of care, absolute privilege, and the doctrine of collateral attack.

The appellants appealed an order striking their statement of claim against a law firm and its lawyers, alleging misconduct in a prior lawsuit.

The motion judge had struck the claim based on absolute privilege and dismissed a cross-motion.

The Court of Appeal upheld the striking of the claim against one defendant (Michelle Turkienicz) and most claims against the other defendants (McCague Borlack LLP and Eric Turkienicz) due to absolute privilege.

However, the Court found the motion judge erred in refusing leave to amend the statement of claim for a malicious prosecution claim by Gary Curtis, as absolute privilege does not bar such a claim.

The Court also upheld the substantial indemnity costs award against the appellants.

Stewart Title Guaranty Company brought a motion for partial summary judgment to dismiss the claim of its policyholder, Farina Nazir, and the crossclaim of 2212478 Ontario Inc. The court dismissed the motion, finding that the issues raised could not be readily bifurcated from the main action and presented a serious prospect of inconsistent findings of fact and mixed fact and law.

The judge determined that a just adjudication required a complete understanding of the allegedly fraudulent transactions, which had not yet been fully discovered.

The court emphasized that partial summary judgment is a rare procedure, reserved for the clearest of cases, and was not appropriate here due to the risks of delay, expense, inefficiency, and inconsistent findings.

The action was ordered to proceed to trial expeditiously.

This costs endorsement followed a decision to strike a third-party claim brought by the defendants against the plaintiff's lawyers.

The court found that the third-party claim, alleging breach of settlement privilege, did not plead a reasonable cause of action, as settlement privilege is a rule of evidence, not a basis for a lawsuit.

The court characterized the claim as an abuse of process and reprehensible litigation conduct.

Consequently, the third parties (plaintiff's lawyers) were awarded substantial indemnity costs, fixed at $23,500, as the court deemed the amount fair, reasonable, and proportional given the circumstances and the defendants' persistence in an improper claim.

The defendants commenced a third-party claim against the plaintiffs' lawyers, alleging they improperly pleaded information protected by settlement privilege.

The plaintiffs' lawyers moved to strike the third-party claim.

The court granted the motion, finding no cause of action exists to sue opposing counsel for litigation conduct, and that such a claim is an abuse of process.

The court affirmed the doctrine of absolute privilege protects participants in litigation from such lawsuits, distinguishing it from a client suing their own lawyer for negligence.

The proper remedy for improper pleadings is to strike the offending passages, not to sue opposing counsel.

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 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 appellant appealed the dismissal of his action for delay and the dismissal of his motion to extend the time to set the action down for trial.

The Court of Appeal for Ontario found no reversible error in the motion judge's decision, which concluded that the appellant's more than five years of delay was inordinate and inexcusable, causing prejudice to the respondents and the administration of justice.

The appeal was dismissed, affirming the lower court's decision to dismiss the entire action, even though only one respondent had sought dismissal for delay.

This is an amended costs endorsement following a successful appeal by the respondents.

The Court of Appeal for Ontario awarded costs of the appeal to the respondents Burns Hubley LLP, Paul Gribilas, and J+W Foods Inc., inclusive of disbursements and interest, payable by the appellants.