Michael R. Kestenberg

The Toronto-Dominion Bank and the defendants brought cross-motions for summary judgment.

The Bank sought judgment on outstanding loans and dismissal of a counterclaim.

The defendants counterclaimed for negligence, negligent misrepresentation, and breach of contract related to a Canada Small Business Financing Loan (CSBFL) and a Home Equity Line of Credit (HELOC).

The court found the Bank liable for breach of contract and negligence regarding the CSBFL for failing to fully fund the promised amount.

However, the defendants' claim concerning the HELOC's inflated appraisal was dismissed due to accord and satisfaction, as a new agreement was reached and the credit facility was continuously used.

Liability was determined, with damages to be assessed at a separate trial.

The appellants appealed a summary judgment decision dismissing their counterclaim as statute-barred.

The counterclaim arose from a dispute between parties involved in waste disposal and transportation businesses from 2011 to early 2014.

The respondents claimed over $350,000 in damages and sought a declaration that the appellants had no beneficial interest in their companies.

The appellants counterclaimed for landscaping services and a declaration of beneficial interest.

The motion judge found the counterclaim was time-barred under the Limitations Act, 2002.

The tolling period under section 11 of the Act, which suspended the limitation period during attempted third-party resolution, ended on February 3, 2014 when the respondents unequivocally terminated the resolution agreement.

The counterclaim was issued March 3, 2016, well beyond the two-year limitation period.

The Court of Appeal upheld the dismissal.

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 appellant purchased land from the respondents with a vendor take-back mortgage.

The purchase agreement and mortgage provided that if the official plan was not amended to change the zoning designation to "Business Commercial" prior to June 17, 2018, the principal amount would be reduced by $600,000.

The mortgage also contained a standard charge term providing that if the lands were sold without the respondents' consent, all amounts owing plus a three-month interest bonus would immediately become due.

The appellant sold the property in February 2017 without consent and paid $600,000 into court, arguing the price reduction applied.

The application judge dismissed the application, and the Court of Appeal upheld the dismissal, finding that the plain language of the mortgage clearly stipulated the June 17, 2018 deadline and that the appellant's sale triggered the obligation to pay all monies owing including the interest bonus.

This endorsement addresses the costs arising from a successful summary judgment motion where the third parties (McMillan LLP, Philip Thompson, and Marssa Giahi) were granted judgment in a solicitors' negligence action brought by the defendants (Crosslink Bridge Corp. and Andrew Penuvchev).

The third parties sought substantial indemnity costs, citing complete success and a Rule 49 offer to settle.

The defendants opposed, raising access to justice concerns and disputing the reasonableness and proportionality of the hours claimed.

The court, applying Rule 57.01 factors and the principle of proportionality, found the time spent by counsel for the third parties to be disproportionate to the result.

Consequently, the court reduced McMillan LLP's requested costs from $209,897.73 to $140,000 and Philip Thompson and Marssa Giahi's requested costs from $256,604.64 to $110,000, inclusive of fees, disbursements, and HST, deeming these adjusted amounts reasonable in the circumstances.

The appellant appealed a summary judgment dismissing his professional negligence claim against a tax lawyer.

The appellant had retained the tax lawyer to advise on tax implications of a matrimonial settlement involving the purchase of his ex-spouse's shares in a family corporation.

The tax lawyer provided advice on two approaches: a direct purchase (which would trigger significant personal tax liability) and a redemption approach (which would avoid the tax hit).

The appellant ultimately settled using the direct purchase approach with a negotiated "tax discount" rather than the recommended redemption approach.

The appellant subsequently incurred approximately $1.3 million in tax liability and sued for negligence.

The motion judge granted summary judgment dismissing the claim, finding the tax advice was correct.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate in these circumstances and that serious issues remained regarding the lawyer's professional obligations to ensure advice was communicated to and understood by the client.

The plaintiffs brought a cross-motion for leave to introduce a supplementary affidavit in response to the defendants' summary judgment motion.

The affidavit addressed two issues: a conversation regarding legal representation and the plaintiffs' financial losses, including an accounting opinion.

Applying Rule 39.02(2) and Rule 1.04 of the Rules of Civil Procedure, the court granted leave for both aspects of the supplementary affidavit, finding the evidence relevant and necessary for a just determination on the merits, particularly given the complexity and potential value of the case, and that the defendants were not surprised by the accounting opinion.

The defendant, Toronto Transit Commission (TTC), brought a motion to enforce an alleged settlement agreement reached via email after two mediations.

The plaintiffs denied a binding settlement, arguing that HST was not included in the agreed-upon amount.

The court found that the defendant's email constituted a new offer, which the plaintiffs unconditionally accepted, and that the settlement amount was inclusive of HST.

The court enforced the settlement, finding no compelling circumstances or evidence of mistake to justify declining enforcement.

The third-party solicitors McMillan LLP, Philip Thompson, and Marssa Giahi brought a motion for summary judgment to dismiss claims of negligence brought against them by defendants Crosslink Bridge Corp. and Andrew Penuvchev.

The defendants alleged the solicitors failed to warn them of environmental risks associated with purchasing contaminated railway lands.

The court found that the solicitors were not negligent, as their retainers were limited, the clients were sophisticated and had conducted their own due diligence, and the environmental disclosure documents were not provided to the solicitors.

Furthermore, the court found the third-party claims were barred by the expiration of the applicable limitation periods.

The motion for summary judgment was granted, and the claims against the third parties were dismissed.

The plaintiff sued her real estate agent and broker for negligence after a real estate transaction failed to close.

The defendants issued a third party claim against the plaintiff's litigation counsel, alleging they were negligent in their conduct of the prior litigation regarding the failed transaction.

The third parties brought a motion to strike the third party claim.

The court granted the motion, finding that the third parties were not implicated in the events giving rise to the initial loss, and any alleged negligence by the plaintiff's counsel in mitigating the loss could be raised as a defence against the plaintiff directly.

The appellants appealed from a motion judge's decision that dismissed their motion for summary judgment to dismiss the plaintiff's action and granted the plaintiff's motion for summary judgment for a declaration that three agreements of purchase and sale were valid and enforceable.

The central issue was the interpretation of handwritten amendments to the agreements that used the terms "verdict" and "official verdict" in place of the defined term "OMB Decision." The appellants argued that the use of different terms presumptively indicated different meanings were intended.

The Court of Appeal upheld the motion judge's conclusion that the terms had the same meaning, finding that the parties' clear intention was to condition the agreements on receipt of a final decision from the Ontario Municipal Board regarding a proposed development.

The appellants, a law firm, appealed a summary judgment decision dismissing their defamation action against a lawyer and her firm.

The lawyer, Brunning, practiced "in association" with Williams-Litigation Lawyers, sharing office space and using the firm's letterhead without supervision.

The motion judge found Williams could not be vicariously liable for Brunning's allegedly defamatory correspondence regarding Indian Residential School claims.

The Court of Appeal allowed the appeal, finding the question of liability was novel and important, involving policy considerations that should be determined at trial rather than on summary judgment.

The court emphasized that Williams had authorized Brunning's use of its letterhead and held her out as associated with the firm, creating potential liability.

The appellant appealed the dismissal of his negligence claim against a solicitor.

The appellant had retained the respondent solicitor to assume carriage of three actions.

The appellant alleged that the respondent's errors caused two actions to be dismissed and prevented execution of a judgment in one action, and that a third action was not prosecuted diligently, resulting in a judgment that could not be executed due to the defendant's bankruptcy.

The motion judge dismissed the claim on summary judgment, finding insufficient evidence of negligence and no proven loss.

The Court of Appeal upheld the dismissal, finding that the appellant failed to meet the onus on summary judgment to put his best foot forward and demonstrate a genuine issue for trial, particularly regarding causation and quantifiable loss.

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.

The appellants appealed from a summary judgment dismissing their counterclaim for professional negligence against their former solicitors.

The law firm had been retained for nearly five years to represent the appellants in protracted litigation and subsequently sued for unpaid fees.

The appellants counterclaimed for damages, alleging the firm failed to provide a meaningful assessment of potential damages that would have enabled an earlier settlement.

The motion judge granted summary judgment, finding no causal link between the firm's failure to obtain a formal damages assessment and the continuation of the litigation.

The Court of Appeal allowed the appeal, finding the motion judge erred in law and that genuine issues requiring trial existed.

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.

The plaintiff, Garfield Anthony Hibbert, sued his former lawyer, Carlin McGoogan, for negligence in handling three separate legal matters.

McGoogan brought a motion for summary judgment to dismiss the action, arguing that Hibbert failed to prove negligence or damages.

The court granted McGoogan's motion, finding no genuine issue for trial as Hibbert provided insufficient evidence to support his claims of negligence or resulting loss in any of the three matters.

Aird & Berlis LLP, a law firm, moved for summary judgment for unpaid legal fees and disbursements totaling $182,569.63 from its former clients, Oravital Inc. and Alliance H. Inc. Oravital counterclaimed for professional negligence, alleging deficiencies in legal services and claiming over $600,000 in damages.

The court found that Oravital's principals were sophisticated businesspeople who understood the litigation risks and value of their claim.

The court determined there was no causal link between the alleged failure of Aird & Berlis to obtain an earlier formal damages assessment and Oravital's decision to continue the litigation.

Consequently, the motion for summary judgment was granted in favour of Aird & Berlis, and Oravital's counterclaim was dismissed.

The applicant landlord sought a declaration that harmonized sales tax (HST) must be added to settlement payments made by the respondent under a settlement agreement.

The agreement, negotiated during Companies' Creditors Arrangement Act (CCAA) proceedings, quantified the landlord's claim after the tenant disclaimed a lease.

The court found the settlement agreement ambiguous regarding the obligation to pay HST.

Applying principles of contractual interpretation, including objective factual matrix, commercial common practice in real estate, and the parties' post-execution conduct, the court determined that the settlement payments were exclusive of HST, and the respondent was required to pay HST in addition.

This is a costs endorsement following a Court of Appeal decision that allowed an appeal in part.

The appellant sought costs in the court below on a partial indemnity basis up to the date of its offer to settle, and on a substantial indemnity basis thereafter.

The Court of Appeal rejected the appellant's reliance on an offer to settle made in the context of its own application, which had been dismissed.

The court found the result on appeal was mixed and awarded costs to the appellant in the amount of $28,565.99, the same amount originally awarded to the respondent in the court below.