Michael R. Kestenberg

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 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 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, 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 appellants appealed a summary judgment that held them liable under a guarantee to The Toronto-Dominion Bank.

The central issue was whether an email sent by one of the appellants constituted clear and unequivocal notice to terminate their liability under the guarantee.

The Court of Appeal found that the email, which sought confirmation of no obligation, did provide such notice.

The court distinguished the facts from a prior Supreme Court of Canada decision, noting that the bank had no doubt about the appellants' intent to terminate and did not take actions indicating a continuing relationship after the notice.

The appeal was allowed, reversing the summary judgment against the appellants.

The appellants, former litigation counsel, appealed the dismissal of their summary judgment motion based on a limitations defence in a solicitor negligence claim.

The motion judge found the claim was not discoverable until the Supreme Court of Canada refused leave to appeal, or alternatively, that commencing an action earlier was not an appropriate means to remedy it.

The Court of Appeal dismissed the appeal, affirming that the claim was not time-barred, emphasizing that the respondents reasonably relied on their counsel's advice regarding the underlying litigation's legal errors, thus delaying discoverability of the negligence claim.

The appellants appealed the motion judge’s dismissal of two actions and an application via summary judgment.

The motion judge had found the proceedings to be an abuse of process, that the claims had been previously released, and that they were barred by statutory limitation periods.

The Court of Appeal upheld the motion judge's decision, finding no errors in his assessment that there was no evidence of fraud tainting prior settlements or releases, and that the claims were indeed barred by abuse of process, releases, and limitation periods.

The court affirmed that summary judgment was an appropriate tool for addressing these threshold issues.

The appellant appealed the dismissal of her Superior Court action against Canada Post Corporation and Norton Rose Fulbright Canada, which was found to be frivolous, vexatious, and an abuse of process under Rule 2.1.01.

The Superior Court action alleged misconduct by the respondents in a Federal Court proceeding.

The Court of Appeal dismissed the appeal, affirming the application of absolute privilege for statements made in judicial proceedings and the prohibition against collateral attack, finding no arguable merit to the appellant's grounds of appeal, including a recusal request.

The appellant, a third party, appealed a motion judge's decision regarding the effect of a Pierringer Agreement on third- and fourth-party claims.

The agreement, entered into by the plaintiffs and a settling defendant, limited the plaintiffs' claims against remaining defendants to several liability.

The appellant argued this precluded the remaining defendant from pursuing its third-party claims.

The Court of Appeal dismissed the appeal, affirming that the Pierringer Agreement and the subsequent order, while limiting the plaintiffs' recovery against the remaining defendant to its several liability, did not affect the remaining defendant's ability to seek contribution from third parties.

This case concerns an abortive real estate swap transaction where the plaintiff, Goldie Malka, and defendants, Florica and Jozsef Racz, each agreed to purchase the other's property.

The agreements, scheduled to close on November 16, 2020, failed to complete, with each party blaming the other.

Malka moved for summary judgment for the return of her $170,000 deposit, while the Raczs cross-moved for summary judgment for damages of $504,240.80.

The court found that both parties fundamentally breached the agreement on the closing date and neither took steps to restore time of the essence, leading to the agreement being treated as abandoned.

Consequently, the court granted Malka's claim for the deposit and dismissed the Raczs' counterclaim, with all judgments issued without costs.

This is a costs decision following the permanent stay of the plaintiffs' main action and third-party proceedings.

The defendants, Paul Gribilas and Peter Gribilas, and the third party, J+W Foods Inc., sought costs as successful parties on dispositive motions.

The plaintiffs argued against costs, claiming a miscarriage of justice given the prior ruling that there were genuine issues for trial.

The court found no miscarriage of justice and applied the normal rule that costs follow the outcome, awarding partial indemnity costs to the Gribilas defendants and full indemnity costs to J+W Foods Inc. based on a contractual provision in a release.

The plaintiffs sued the defendant lawyer and accountant for professional negligence, alleging they failed to protect the plaintiffs' ownership interest in a corporation.

The defendants brought third-party claims against the corporation and its principals.

The defendants and third parties moved for summary judgment to stay the action, relying on a general release previously signed by the plaintiffs in a settlement with the corporation.

The court granted the motions, finding that although the defendants were not parties to the release, allowing the action to proceed would trigger third-party claims against the released parties, violating the no-claims-over provision.

The main action and third-party proceedings were permanently stayed as an abuse of process.

The appellants sought to set aside an order dismissing their motion to stay the enforcement of certain costs orders from lower court proceedings.

However, the Supreme Court of Canada subsequently dismissed their application for leave to appeal with costs, rendering the appeal before the Court of Appeal moot.

Consequently, the appeal was dismissed as moot, and costs were fixed in favour of the respondents.

The appellants appealed a summary motion judge's decision dismissing their negligence claim against a lawyer and a related costs order.

The Court of Appeal dismissed the appeal, agreeing that a lawyer cannot be held liable for negligence when conducting a discovery in accordance with a court direction, even if an unfortunate event occurs.

Leave to appeal the costs order was granted, but that appeal was also dismissed, as the costs order fell within the broad discretion of the summary motion judge.

The defendants, former legal counsel for the plaintiffs, brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence action on the basis that it was statute-barred.

The plaintiffs alleged the defendants were negligent in failing to argue the unconscionability and public policy branches of the Tercon test regarding an exclusion clause in the underlying trial against Toyota.

The court dismissed the summary judgment motion, finding that the limitation period did not begin to run until the Supreme Court of Canada denied leave to appeal in the underlying action, as the plaintiffs reasonably relied on the defendants' advice to pursue appeals and a legal proceeding was not an 'appropriate means' to seek a remedy until the appeal process was exhausted.

This appeal concerned the enforceability of two significant loans, secured by promissory notes, against the estate of Dennis Chedli and his wife, Anna Chedli.

The motion judge had dismissed the claims, finding the notes either repaid, statute-barred, or void due to material alteration without assent.

The Court of Appeal partially allowed the appeal.

It found that the first promissory note, signed by both Dennis and Anna Chedli, was not repaid as a new loan, and that there was sufficient corroborative evidence (payments and discussions) that Dennis Chedli assented to its conversion to a demand note, making it enforceable against his estate.

However, the first note remained void and unenforceable against Anna Chedli and the collateral mortgage, as she did not assent to its alteration.

The second promissory note, signed by Dennis Chedli alone, was found to be statute-barred as there was no corroborating evidence of his assent to its conversion to a demand note.