Michael R. Kestenberg

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.

The appellants, William Fehr Sr. and Dorothey Fehr, appealed a lower court order that permanently stayed their professional negligence action against Paul Gribilas (lawyer) and Burns Hubley LLP (accounting firm) based on a "no-claims-over" provision in a mutual release.

The release settled previous disputes, including the Fehrs' purported interest in J+W Foods Inc. The professional negligence action alleged that Gribilas and Burns Hubley LLP failed to protect the Fehrs' shareholdings.

The motions judge found the action to be an abuse of process because it contravened the no-claims-over clause, which prevented claims against parties who might seek contribution from the releasees (J+W Foods Inc., William Fehr Jr., Steven Trougakos).

The Court of Appeal dismissed the Fehrs' appeal, affirming that the motions judge had the inherent authority to stay the action as an abuse of process and that the defendants had a viable claim over, thereby triggering the no-claims-over provision.

The cross-appeal by Gribilas and Burns Hubley LLP was dismissed as moot.

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.

This endorsement addresses the costs of a summary judgment motion and the underlying action, where the plaintiff's claims were dismissed.

The successful defendant sought substantial indemnity costs, arguing unsupported allegations of intentional misconduct and an early settlement offer.

The court rejected substantial indemnity, finding the allegations did not constitute fraud or dishonesty and that an early offer does not automatically warrant elevated costs.

Assessing costs on a partial indemnity basis, the court reduced the quantum sought by the defendant, citing the assignment of two senior lawyers to a moderately complex and relatively straightforward matter.

The court fixed costs at $15,000 inclusive of HST and disbursements.

The plaintiff, Michael St. Jean Realty Inc. (SJR), a real estate brokerage, sued the defendant, Scarfone Hawkins LLP, alleging breach of trust, interference with economic relations, and detinue regarding unpaid commissions from condominium sales.

SJR claimed an agreement with the developer (467 Charlton Avenue Inc.) for commissions to be held in trust by Scarfone Hawkins LLP, which were then improperly disbursed to creditors.

Scarfone Hawkins LLP brought a motion for summary judgment seeking dismissal of SJR's claim.

The court granted the motion, dismissing SJR's action, finding no evidence of a specific trust created for SJR or that Scarfone Hawkins LLP was aware of such a trust or acted dishonestly in disbursing funds according to creditor directions.

The Bank of Nova Scotia (BNS) brought a motion to convert Shu Kuan Li's application for conversion damages into an action and to have it heard together with a separate application by Goldentrust XE Inc. The court dismissed BNS's motion, finding it premature to convert the application to an action as no material facts were in dispute at this stage.

The court also determined that the balance of convenience did not favour hearing the two applications together, emphasizing the distinct nature of the claims and the potential for delay.

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 Legal Defendants brought a motion to strike the plaintiff's Statement of Claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action.

The plaintiff, a lawyer, alleged fraud by the defendants in prior actions and sought to declare previous court decisions null and void, along with damages and contempt findings.

The motion proceeded unopposed as the plaintiff did not attend.

The court found the claim to be a collateral attack on final decisions, protected by absolute privilege, lacking a duty of care owed by opposing counsel, an abuse of process, and improperly seeking contempt.

The Statement of Claim was struck without leave to amend, as its deficiencies were deemed incurable in law.

The defendants brought a motion to strike the plaintiffs' statement of claim for disclosing no cause of action, relying on absolute privilege for litigation conduct and the absence of a duty of care owed by opposing counsel.

The plaintiffs, self-represented, cross-moved to stay the defendants' motion and for default judgment, arguing the defendants were improperly noted in default.

The court dismissed the plaintiffs' cross-motion, finding that a motion to strike precedes the need for a statement of defence.

The court granted the defendants' motion, striking the statement of claim without leave to amend, as the claims against the lawyer and law firm were barred by absolute privilege, and the claim against the lawyer's spouse lacked any legal basis.

The court also ordered that the plaintiffs be precluded from bringing any further proceedings against the defendants without leave of the court, citing the abuse of process and the need to protect judicial resources.

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 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 sued a lawyer who was retained by her former employer to investigate her workplace harassment complaint.

The defendant lawyer brought a motion for summary judgment.

The court granted the motion, finding that the lawyer owed no duty of care to the plaintiff as she was not a client and no exceptional circumstances existed.

Furthermore, the court found the action was statute-barred as the plaintiff commenced the claim more than two years after discovering the alleged issues with the investigation report.

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 appellant's property was sold under power of sale.

She initiated an action alleging conspiracy to defraud and moved to set aside the sale, claiming fraud and improvidence.

The motion judge dismissed all claims except for an accounting by the mortgagee.

The Court of Appeal dismissed the appeal, finding no direct or circumstantial evidence of fraud, and that the sale was not improvident, especially considering the appellant's history of default and delay.

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.

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, an experienced private lender, brought an action against a law clerk and two lawyers for negligence, fraud, and conspiracy arising from defaulted mortgage investments.

The defendants moved for summary judgment, arguing the claims were statute-barred and lacked evidentiary support.

The court granted summary judgment, finding that the plaintiff knew or ought to have known of the material facts supporting her claims well beyond the two-year limitation period.

Furthermore, the plaintiff failed to provide expert evidence on the standard of care for the professional negligence claims and offered no evidence to support the allegations of fraud and conspiracy.

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.