Michael R. Kestenberg

The appellant appealed a summary judgment dismissing its action.

The Court of Appeal dismissed the appeal, finding no genuine issue requiring a trial because the appellant had already obtained judgment for the full amount of its loss in a separate lawsuit and failed to establish damages against the respondents.

The plaintiff's husband died in a construction accident, leaving her as the sole heir to his one-third interest in a successful family construction and real estate business.

While emotionally distraught and relying heavily on her sister-in-law to manage the estate and business affairs, the plaintiff signed a Transfer Agreement giving up her husband's shares and real estate interests in exchange for a condominium of significantly lesser value.

The plaintiff brought an action to set aside the Transfer Agreement.

The Superior Court of Justice found that the sister-in-law and brother-in-law had abused their relationship of trust, and set aside the agreement on the grounds of undue influence, unconscionability, misrepresentation, and breach of fiduciary duty.

The court also declared that the plaintiff was entitled to a one-third interest in various joint venture properties that had been improperly diverted to a company solely owned by the sister-in-law.

The applicants, a group of companies owned by Dondeb Inc., sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to enable an orderly liquidation of their assets.

The application was opposed by approximately 75% of the secured creditors, who argued for individual receiverships due to a lack of confidence in the applicants' principal and the burden of CCAA administrative costs.

The court dismissed the CCAA application, finding it unlikely that a successful plan could be developed and approved by the creditors.

Instead, the court issued a Global Receivership Order, which was supported by the opposing creditors, to achieve an orderly liquidation at a lower cost.

The plaintiffs were defrauded of $1.3 million by a promoter who instructed them to deposit funds into a law firm's trust account.

The funds were subsequently disbursed on the promoter's instructions.

The plaintiffs sued the law firm and the responsible lawyer for negligence and breach of trust.

The defendants moved for summary judgment.

The court granted the motion, finding that the lawyers owed no duty of care to the non-client plaintiffs, as there was no proximity and the plaintiffs' reliance was not reasonable.

The court also found no fiduciary duty existed.

The plaintiffs brought an action alleging they were victims of an advance fee loan scam perpetrated by the main defendant with the assistance of several lawyers and law firms.

Three groups of defendant lawyers brought motions to strike the statement of claim.

The court struck the negligence claims against one lawyer and his firm, finding opposing counsel owes no duty of care to the opposite party.

The court struck the claims against two other law firms but allowed the fraud claim against their partner to proceed, subject to the plaintiffs providing better particulars.

Finally, the court dismissed the claim against a third lawyer, finding it was statute-barred under the Limitations Act, 2002, as the plaintiffs had sufficient knowledge of the alleged misconduct more than two years before commencing the action.

The defendants sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a summary judgment motion after the action had been set down for trial, seeking dismissal of claims alleging negligence, breach of fiduciary duty, and breach of trust by a former solicitor.

The plaintiff alleged that the solicitor negligently advised against a lucrative media interview, mishandled negotiations for a lucrative rematch race, failed to ensure race earnings were deposited into an athletic reserve fund, and improperly received legal fees from that fund.

The court granted leave and held that the claims disclosed no genuine issue requiring a trial.

The evidence showed the allegations were unsupported, many were contradicted by documentary records, and the plaintiff failed to provide direct affidavit evidence from witnesses with personal knowledge.

The court further found the claims were statute-barred under the Limitations Act, 2002 and barred by laches due to significant delay and prejudice to the defendants, including the death of key witnesses.

The appellant appealed an order dismissing its motion to remove the respondents' lawyers of record due to an alleged conflict of interest.

The appellant argued that a 'near client' relationship was established through a telephone call and an email sharing information among franchisees defending against claims by a third-party franchisor.

The Divisional Court dismissed the appeal, finding no error in the motion judge's conclusion that the shared information was used for its intended purpose and did not establish a near client relationship.

The court determined costs following the dismissal of a defendant’s motion for summary judgment.

The plaintiff sought costs on a full indemnity scale or alternatively on a partial indemnity scale, arguing the motion should never have been brought.

The court declined to award full indemnity costs, noting that summary judgment jurisprudence was still developing following amendments to the Rules of Civil Procedure and the decision in Combined Air Mechanical Services Inc. v. Flesch.

While the court found the time spent by counsel generally reasonable given the factual complexity and cross‑examinations, it concluded the amount sought exceeded what the defendant could reasonably have expected to pay.

The plaintiff was awarded $65,000 in fees and disbursements.

The plaintiff brought a motion to stay pending summary judgment motions brought by the defendants, arguing that the motions were premature and that discovery was necessary to develop a full evidentiary record capable of satisfying the “full appreciation” test.

The defendants opposed the stay and argued that the issues—primarily a limitation period defence under the Limitations Act, 2002—were appropriate for determination on summary judgment.

The court reviewed the post‑2010 summary judgment framework articulated by the Court of Appeal and considered whether the evidentiary record required the procedural advantages of a trial.

The court found that the dispute was largely document‑driven, involved limited witnesses, and centred on whether the plaintiff knew or ought to have known of the loss of her beneficial interest in property by at least April 2009.

The court held that the matter was suitable for summary judgment and dismissed the motion to stay.

The defendant brought a motion for summary judgment arguing that the plaintiff’s action to recover funds advanced during a former romantic relationship was barred by the applicable limitation period.

The dispute concerned whether substantial funds used for the renovation of the defendant’s law office constituted a loan or a gift and whether the defendant, a lawyer who had professional dealings with the plaintiff’s business, owed and breached a fiduciary duty.

The court held that the nature of the parties’ personal and professional relationship, the characterization of the transactions, and the existence of any fiduciary duty or conflict of interest required credibility findings that could not be made on a summary judgment motion.

The court also noted that the resolution of these issues could affect whether a limitation period applied.

The motion for summary judgment was therefore dismissed.

The defendant solicitors brought a motion for summary judgment to dismiss the plaintiffs' solicitor negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiffs cross-moved, arguing the limitation period did not commence until a 2009 court decision confirmed the error in a real estate statement of adjustments.

The court found that a reasonable person in the plaintiffs' position would have known of the potential claim when a related lawsuit was commenced in September 2006.

The court granted the defendants' motion, dismissing the action as statute-barred and an abuse of process, and awarded costs to the defendants.

The appellants appealed the judgment of Justice Gray dated March 29, 2011.

The Court of Appeal dismissed the appeal, directing the parties to the endorsement in the companion appeal C53566.

The appellants appealed a motion judge's refusal to set aside an order striking their statement of defence under Rule 37.14.

The motion judge found that counsel's non-attendance at the initial motion was not due to mistake or accident, but was part of a pattern of delay and stonewalling.

The Court of Appeal upheld this factual finding and dismissed the appeal, awarding costs to the respondent.

The appellant appealed a judgment dismissing its request for rectification of a definition in an Agreement of Purchase and Sale based on mutual mistake.

The dispute centered on the definition of 'Gross Floor Area' (GFA) and whether it should be rectified to correspond with a site-specific by-law rather than the City of Toronto By-law specified in the agreement.

The Court of Appeal dismissed the appeal, finding no mutual mistake because the respondent clearly intended to use the City of Toronto By-law definition to determine any increase in GFA.

The appellants appealed a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly applied the onus of proof and properly concluded that the respondent had satisfied its onus while the appellants failed to advance an affirmative defence.

Costs of $7,500 were awarded to the respondent.

The appellant appealed a summary judgment granted by the motion judge.

The Court of Appeal found no basis to interfere with the decision and dismissed the appeal, awarding costs to the respondents.

The appellant purchased goods from the respondents and resold them to a separate company, Global Sales Limited.

The trial judge found the respondents breached their contract and made negligent misrepresentations, but dismissed the action because the losses were sustained by Global, not the appellant.

The trial judge also denied the appellant's late motion to add Global as a plaintiff.

The Court of Appeal upheld the trial judge's findings, confirming that Global was an independent legal entity and that adding it as a party after the close of evidence would be irreparably prejudicial to the respondents.

The appeal was dismissed.

The appellants appealed a motion judge's decision declining to exercise discretion under Rule 2.01 to cure an irregularity in the proceeding.

The appellants sought to convert an improper cross-claim into a third-party claim for solicitor's negligence against the respondents, who were lawyers for the opposing parties in a previous mechanic's lien action.

The Court of Appeal dismissed the appeal, finding that despite potential legal errors in the motion judge's reasons, the decision to strike the cross-claim as an abuse of process was justified due to the convoluted history of the litigation, the contrived nature of the claim, the appellants' five-year delay in seeking to cure the defect, and the inevitable prejudice to the respondents.

The appellants made an offer to settle that was stated to be irrevocable until one minute after the commencement of trial.

Before the respondent accepted the offer, the appellants revoked it and made a new offer.

The respondent sought to enforce the original offer, and the motion judge granted the request, finding that Rule 49.04(1) was subject to the irrevocability provision.

The Court of Appeal allowed the appeal, holding that Rule 49 is a self-contained scheme and Rule 49.04(1) expressly permits an offer to settle to be withdrawn at any time before it is accepted, regardless of whether it is stated to be irrevocable.

The appellant wife appealed an order refusing her the opportunity to ask the respondent husband's father certain questions and directing him to produce certain documents during pretrial proceedings.

The Court of Appeal quashed the appeal, finding that the order was interlocutory in nature and therefore outside its jurisdiction, as it did not finally determine the husband's interest in his father's company.