Michael R. Kestenberg

On a Rule 20 summary judgment motion, a solicitor sued in relation to mortgage discharge and alleged failure to re-register a second collateral mortgage obtained dismissal of the claim against him.

The court held the evidentiary record established no solicitor-client retainer between the plaintiffs and the moving party, where the only relied-upon communication was a single email not addressed to the lawyer and none of the indicia of a solicitor-client relationship were present.

The court further held that no duty of care arose to the plaintiffs as non-clients because there was no reasonable reliance, no communication, and no proximity.

Having found no retainer, no duty, and no evidentiary basis for damages, the court concluded there was no genuine issue requiring a trial and granted summary judgment with costs.

The defendant lawyer moved for summary judgment to dismiss a professional negligence action.

The plaintiff alleged the defendant was negligent in failing to appeal the disallowance of its secured claim in a bankruptcy.

The court assumed negligence but found the plaintiff could not prove causation or damages, as it failed to adduce evidence that the bankrupt had any rights in the funds over which the plaintiff claimed a security interest.

Without the bankrupt having rights in the collateral, the security interest could not attach under the Personal Property Security Act.

The action was dismissed with costs awarded to the defendant.

The plaintiff landlord sought summary judgment for approximately $800,000 in alleged unpaid rent from its commercial tenant and guarantor, arising from the tenant paying only 50% of minimum rent after opening its store before certain parking spaces were provided.

The dispute turned on whether a lease amending agreement implicitly removed the tenant’s contractual right to pay reduced rent when opening conditions were unmet.

The court applied principles of contractual interpretation emphasizing objective intention derived from the text and surrounding circumstances.

It held that the amendment concerning alternative parking did not modify the tenant’s right under the original lease to pay 50% rent until the required parking spaces were delivered.

The landlord’s claim for back rent was dismissed and the related summary judgment motion by the landlord’s former lawyers seeking dismissal of the negligence claim against them was also dismissed.

The plaintiffs brought a $10 million solicitor negligence action against their former lawyers arising from legal services provided during a shareholder dispute and mediation leading to a buyout of the plaintiffs’ interest in a shoe business.

They alleged the lawyers forced them into a sale, misrepresented valuation implications, failed to protect a purported 50% ownership interest, and negligently advised bringing an unsuccessful motion to set aside a mediated agreement.

The court rejected the allegations, finding the plaintiff was a sophisticated businessperson who actively participated in negotiations, reviewed drafts, and instructed counsel throughout.

The evidence showed the mediated agreement was knowingly entered into as a binding agreement with a reasonable valuation date and arbitration mechanism.

The court held the defendants met the standard of care of a reasonably competent lawyer and that any strategic decisions fell within a reasonable range of professional judgment.

The plaintiff bank brought a motion for summary judgment to recover debts owing under two business lines of credit issued to corporate defendants operating tanning businesses.

The individual defendants, who were officers and directors of the corporations, had signed personal guarantees but argued they were not personally liable because they did not read the documents, were not advised to obtain independent legal advice, and believed the debt related to a successor corporation was discharged.

The court applied the summary judgment framework from the Supreme Court of Canada and found no genuine issue requiring a trial.

The documentary evidence confirmed the existence of continuing guarantees covering present and future debts, including after corporate name changes.

The court rejected the defendants’ credibility and legal arguments and held them personally liable under the guarantees.

Following the release of the main appeal decision, the appellants and respondents settled the issue of costs.

The respondents sought an additional $5,000 in partial indemnity costs against the interveners.

The Court of Appeal declined to award costs against the interveners, finding that the respondents had already recovered substantial costs from the appellants and incurred only nominal costs from the intervention.

The appellants appealed a trial judgment setting aside a transfer agreement on grounds of undue influence, breach of fiduciary duty, misrepresentation, and unconscionability.

The appellants argued the trial judge exceeded his jurisdiction under a bifurcation order and made palpable and overriding errors of fact.

The Court of Appeal dismissed the appeal, finding the trial judge's order was within the scope of the bifurcation order and his factual findings were well-supported by the evidence.

The appellants appealed a summary judgment dismissing their action against the respondent law firm and lawyer for allegedly failing to complete settlement documents by a specific date.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that while a plaintiff need not quantify their loss to avoid summary judgment, they must demonstrate some evidence in the record that a loss occurred.

The appellants failed to provide such evidence.

The proposed intervenors brought a motion for leave to intervene in an appeal concerning a family business dispute.

The respondents opposed the motion and brought a cross-motion to enforce an alleged settlement of the intervention motion under Rule 49.09.

The Court of Appeal held that the pre-litigation exchange of letters did not constitute a valid Rule 49 offer because there was no pending motion at the time.

The court granted the motion to intervene, finding that the proposed intervenors' interests could be adversely affected by the appeal, and dismissed the cross-motion to enforce the settlement.

The plaintiff appealed a Master's order dismissing its action under Rule 34.15(1) of the Rules of Civil Procedure for its representative's refusal to answer questions during an examination for discovery.

The Divisional Court allowed the appeal, finding that the Master erred in law and fact by concluding that the plaintiff's conduct was an egregious breach that prejudiced the defendants such that a dismissal was warranted.

The court held that the defendants' prejudice could be remedied by ordering the plaintiff's representative to re-attend the examination and answer proper questions, rather than imposing the draconian sanction of dismissing the action.

Appeal from a master's ruling on a refusals motion arising during examinations conducted under rule 39.03 of the Rules of Civil Procedure in connection with a motion for particulars.

The plaintiff argued that the defendants waived solicitor‑client privilege over their entire litigation file by filing an affidavit from counsel stating that the defendants lacked knowledge necessary to plead.

The court held that filing a solicitor’s affidavit results only in a limited waiver of privilege confined to matters directly placed in issue by the affidavit.

Solicitor‑client privilege remains fundamental and must be interpreted narrowly when assessing waiver.

The master correctly concluded that only documents connected to the affidavit’s subject matter were producible and that broader disclosure of the law firm’s entire file was not required.

The appellants appealed an order granting summary judgment dismissing their third party claim against a lawyer.

The court held there was no genuine issue requiring a trial because the evidentiary record did not establish any ongoing retainer or solicitor-client relationship between the appellants and the respondent.

A single telephone conversation with the appellants' then-lawyer was found to be merely a request for clarification about notice, not a retainer for legal advice on whether shares could be transferred without unanimous shareholder consent.

The appeal was dismissed with costs.

The court issued an addendum correcting a numerical error in an earlier endorsement concerning damages.

The original endorsement referenced an amount of $80,000 in paragraph 42.

The court clarified that the correct amount was $90,000 and amended the decision accordingly.

The addendum forms part of the reasons and corrects the earlier judgment.

The defendants moved for summary judgment dismissing a claim arising from an alleged oral land development partnership.

The plaintiff alleged breaches of fiduciary duty and sought rescission and return of capital contributions after withdrawing from the partnership before completion of the project.

The court held that the motion could not be determined on summary judgment because the key issues—including alleged misrepresentations, disclosure obligations between partners, the terms of the plaintiff’s withdrawal, and limitation issues—turned largely on credibility and disputed factual narratives.

Applying the “full appreciation” test for summary judgment, the court concluded that the evidence required the trial process.

The motion was dismissed and the matter directed to trial.

A franchisee brought an action against the franchisor alleging failure to disclose material information under the Arthur Wishart Act in connection with a renewal of a franchise agreement and the franchisor’s requirement that the franchisee undertake costly renovations to convert its store to a sit‑down restaurant.

The franchisee claimed the renovations constituted a material change requiring disclosure and alleged breaches of good faith, damages for loss of the business, and lost profits.

The court held that the renovation program had been disclosed and known to the franchisee since before the original franchise agreement and therefore did not constitute a material change at renewal within the meaning of the Arthur Wishart Act.

The court further found the franchisor acted in good faith and made multiple reasonable accommodations and offers to the franchisee.

In any event, the franchisee failed to mitigate its damages by refusing to return to operate the store for the remaining term of the agreement.

The action was dismissed.

Following a successful civil action in which a transfer agreement was set aside and the plaintiff was declared to hold a one‑third interest in certain assets, the court determined the appropriate scale and quantum of costs.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct involved breach of fiduciary duty, undue influence, misrepresentation, and unconscionability.

The court held that substantial indemnity costs were warranted because the defendants’ conduct was reprehensible, including exploiting a vulnerable family member and deliberately failing to produce relevant financial records during litigation.

After considering objections regarding duplication of counsel, abandoned claims, and the reasonableness of hours billed, the court fixed costs globally.

The court awarded $525,000 inclusive of taxes and disbursements.

The moving parties sought summary judgment dismissing the claim as statute‑barred under the Limitations Act, 2002 in relation to legal services provided in connection with a real estate transaction and related trust agreement and power of attorney.

The responding party argued the limitation period had not begun to run because she lacked the mental capacity to appreciate that she had a potential claim.

The court held that the evidence filed did not establish mental incapacity sufficient to suspend the limitation period, noting the absence of admissible expert evidence and the failure of the responding party to provide her own affidavit evidence.

The court found the limitation period began when the responding party consulted counsel asserting the invalidity of the documents.

As the claim was commenced more than two years later, the action against the moving parties was statute‑barred.

Following a judgment in favour of the plaintiff, the court addressed the appropriate process for determining costs.

The plaintiff sought substantial indemnity costs of approximately $587,000, while the defendants argued that the matter should be referred to an assessment officer because the plaintiff had not produced detailed dockets or invoices supporting the claimed fees and disbursements.

The court held that under Rule 57.01 of the Rules of Civil Procedure, the trial judge should ordinarily fix costs and that referral to an assessment officer is reserved for exceptional cases.

The absence of detailed dockets did not make the case exceptional, particularly where a proper costs outline had been provided in accordance with the rules.

The court declined to order an assessment and directed a further written exchange of submissions after disclosure of dockets if requested.

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 appellants sued their former solicitors for negligence arising from a real estate transaction after being found liable in an underlying deficiency action.

The motion judge granted summary judgment dismissing the claim as statute-barred and an abuse of process, finding the claim was discoverable when the deficiency action was commenced.

The Court of Appeal allowed the appeal, holding that the claim was not discoverable until the judgment in the deficiency action was released, given the solicitor's repeated assurances that he had not made an error and the absence of advice to the contrary from litigation counsel.

The Court also found the action was not an abuse of process.