Milton A. Davis

A law firm appealed an application judge’s decision interpreting a contingency fee retainer agreement and rejecting its claim to a share of damages awarded on appeal.

The client had retained new counsel for the appeal, which resulted in a substantial damages award after an unsuccessful trial.

The firm argued it was entitled to fees under the retainer or alternatively on a quantum meruit basis.

The Court of Appeal held that the retainer expressly limited fee entitlement to damages recovered by settlement or judgment at trial and did not include recovery obtained on appeal.

The court also held that quantum meruit relief was unavailable where the parties had expressly defined the circumstances of payment.

The appeal was dismissed.

The defendants appealed an associate justice's decision dismissing their rule 5 motion to remove individual defendants and professional corporation defendants from a wrongful dismissal and breach of contract claim brought by former partners of a law firm.

The defendants also brought a pleadings motion under rules 25.06 and 25.11 to strike the statement of claim.

The court upheld the associate justice's decision, finding that the individual defendants and professional corporation defendants were properly joined under rule 5.02(2)(c) because there was doubt as to the person or persons from whom the plaintiffs were entitled to relief.

The court rejected arguments that the pleading was vague or scandalous, finding it adequately pleaded the claims against all defendants.

The court dismissed both the appeal and the pleadings motion.

Following an appeal in a class proceeding, the parties and the Law Foundation of Ontario made a joint submission regarding costs.

The Court of Appeal ordered the appellants to pay the respondent's costs of the appeal fixed at $30,000 inclusive of disbursements and taxes.

The appellants appealed the dismissal of their class proceeding for delay under s. 29.1(1) of the Class Proceedings Act, 1992.

The motion judge found that the appellants failed to file a certification motion record or establish a timetable for steps required to advance the proceeding within one year of commencement.

The Court of Appeal upheld the dismissal, confirming that while a contextual approach applies to determining whether a timetable for required steps was established, the one-year deadline is mandatory and no such timetable existed here.

The court also rejected arguments regarding waiver, the availability of a Phoenix order, and the effect of adding a new plaintiff.

The Arcádia Parties brought a motion to compel Alexey Kondratiev to attend an examination in aid of execution and produce documents to collect on three outstanding cost orders totaling $236,250.

The Kondratiev Parties brought a cross-motion to remove counsel for the Arcádia Parties (three of which are dissolved corporations) and to vacate writs of seizure and sale, arguing that the dissolved corporations lacked legal capacity to instruct counsel or receive payments.

The court granted the Arcádia Parties' motion, compelling the examination and document production, and dismissed the Kondratiev Parties' cross-motion, finding their arguments to be a transparent attempt to evade payment of costs.

The court awarded $20,000 in partial indemnity costs to the Arcádia Parties.

This endorsement addresses two motions arising from a cybertheft of approximately $9.7 million from the applicant's bank account at the respondent bank.

The applicant, FACTOR, sought additional productions from the Bank of Nova Scotia (BNS), alleging a parsimonious approach to disclosure.

BNS, supported by other respondents, sought to convert the application into an action, citing material facts in dispute and complex issues.

The court largely granted FACTOR's production requests, ordering BNS to provide more details from its internal investigation, session logs (with confidentiality), and internal alert system details (with a secure mechanism).

The court also ordered the additional respondents, James Campagna and 10426377 Canada Inc., to produce all relevant documents.

The motion to convert the application to an action was dismissed as premature, with the court noting that the necessity of conversion could be revisited once the respondents deliver their full evidence.

The defendants, Michael Slattery and Skylark Holdings Ltd., brought a motion for summary judgment to dismiss the action against them.

They argued that the plaintiffs had not sustained any damages and had breached the immediate disclosure rule by failing to disclose a partial settlement agreement.

The court dismissed the motion, finding a genuine issue for trial regarding damages due to conflicting evidence on reliance, and determining that the partial settlement did not significantly alter the litigation dynamics to constitute a breach of the immediate disclosure rule.

This is an appeal by the defendants from an Associate Justice's order that dismissed their request to strike certain paragraphs from the Statement of Claim.

The impugned paragraphs alleged bad faith contractual performance by the defendants, specifically referencing an alleged campaign to damage the plaintiff, including encouraging a false accusation of sexual assault, following the plaintiff's departure from their accounting firm.

The defendants also sought to strike paragraphs related to "departure negotiations" on the basis of settlement privilege.

The court dismissed the appeal, affirming that the allegations of bad faith contractual performance were viable under Bhasin v. Hrynew and that the correspondence regarding departure negotiations was not presumptively privileged without evidence of intent to settle.

The applicant sought to enforce two arbitration awards totaling over $4 million against the respondent real estate developer.

Pending the hearing of the enforcement application and the respondent's application to set aside the awards for reasonable apprehension of bias, the applicant moved for a preservation order under Rule 45.01 or a Mareva injunction to prevent the respondent from dissipating its remaining assets.

The court dismissed the motion, finding that Rule 45.01 was inapplicable because the applicant claimed no property interest in the assets, and a Mareva injunction was unwarranted because the applicant failed to establish a real risk that the respondent would dissipate its assets to avoid judgment.

The defendant, Diamond & Diamond Lawyers LLP, brought a motion to dismiss a class proceeding for delay, arguing that the plaintiffs, William Tataryn and Daya Nand Rajan, failed to comply with section 29.1 of the Class Proceedings Act, 1992.

The court found that the plaintiffs had not taken the required steps towards certification within the statutory deadline of October 1, 2021.

The court rejected the plaintiffs' arguments that their efforts to amend faulty pleadings constituted progress under s. 29.1 or that the defendant had waived its rights.

The court also dismissed the request for a "Phoenix" order, which would allow a new action to be started, deeming it contrary to the policy of s. 29.1.

The action was dismissed.

The applicant sought specific performance of an alleged agreement to purchase the respondents' shares in a corporation involved in the Thai medical cannabis industry.

The court found that the email correspondence between the parties constituted an agreement in principle, but not a binding contract, as essential terms regarding due diligence and disclosure remained unresolved.

However, the court found that a subsequent rights offering proposed by the respondents, which would have significantly diluted the applicant's minority shareholding at a below-market price, was oppressive.

The application for specific performance was dismissed, but the rights offering was permanently enjoined.

The appellants appealed a summary judgment for a mortgage deficiency, arguing that the respondent (mortgagee) failed to take reasonable precautions to obtain the property’s true market value during power of sale proceedings, leading to an improvident realization.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly applied the summary judgment test and that there was no evidence of the respondent failing to take reasonable precautions or of an improvident sale.

The court also rejected the appellants' arguments regarding inadequate evidence and the legal test for a mortgagee's duty, affirming that a mortgagor must show a higher price would have been obtained but for any alleged breach.

The defendants brought a second motion under Rule 21.01 to strike portions of the plaintiff's seventh amended statement of claim, alleging non-compliance with a previous ruling.

The plaintiff brought a cross-motion to add a new plaintiff and new statutory causes of action.

The court granted the motion to strike references to previously discontinued defendants and a claim of fraudulent concealment, finding them improper or insufficiently pleaded.

However, the court dismissed the motion to strike new consumer protection claims and the challenge based on limitation periods, deeming these issues premature for a pleadings motion.

The plaintiff's cross-motion to add a new plaintiff was granted.

The defendants (Trinity) moved for an order requiring the plaintiff (CSMI) to produce documents relating to a real estate development.

CSMI consented to production, but the National Capital Commission (NCC), a non-party, sought enhanced confidentiality protections for the documents.

The court rejected the NCC's proposed two-tier confidentiality order, finding it overbroad and unsupported by evidence demonstrating that the existing implied undertaking, deemed undertaking rule, and confidentiality protocol were insufficient.

The court granted the motion on the terms proposed by Trinity.

The plaintiff requested clarification regarding the scope of an order compelling production of documents.

The court had previously found a joint retainer existed between the plaintiff and the defendant.

The court clarified that as between joint venture parties, communications with the jointly retained lawyer relating to the subject matter of the joint venture are not privileged, even if the communications involved matters where the parties' interests were adverse or concerned withdrawing from the joint venture.

The defendants (Trinity Development Group Inc., Trinity Albert LP, and John Ruddy) brought a motion to compel Capital Sports Management Inc. (CSMI) and Eugene Melnyk to produce documents related to the work of Gowling WLG LLP for RendezVous LeBreton Group (RLG) and the LeBreton Project.

Trinity argued that Gowlings was jointly retained by CSMI and Trinity in relation to the RLG joint venture, or that common interest privilege applied, or that CSMI had waived privilege.

CSMI contended that Gowlings acted solely for CSMI.

The court found that a joint retainer existed between Gowlings, CSMI, and Trinity for the RLG and LeBreton Project from July 23, 2015, to November 23, 2018, based on objective evidence including Gowlings' representation of RLG to third parties, shared instructions, and shared payment of fees.

The court also noted that CSMI's pleading of a fiduciary relationship with Trinity was inconsistent with its claim of privilege.

The motion to compel production was granted, requiring CSMI to produce the requested documents in unredacted form.

The appellant, Georgian Properties Corporation, appealed a summary judgment that dismissed its negligence action against respondent lawyers as statute-barred.

The negligence claim stemmed from the lawyers' work on condominium disclosure documents, mortgages, and a promissory note, which were later found insufficient or oppressive by a lower court.

The motion judge had found the claim discoverable by July 7, 2017, when a judge declined to strike a factum alleging inadequate disclosure.

The Court of Appeal found the motion judge erred in holding that loss occurred when the condominium corporation refused payments, clarifying that loss in solicitor negligence cases turns on the validity or enforceability of documents, not mere non-payment by third parties.

The Court concluded that Georgian Properties did not have sufficient material facts to infer liability against the lawyers until later, given the unusual procedural history and their reasonable expectation of success on the debt instruments.

The appeal was allowed, and the limitation defence dismissed.

The applicant law firm sought costs on a substantial indemnity basis after successfully enforcing an arbitration award against the respondents.

The respondents argued that the applicant, as a self-represented law firm, was only entitled to nominal costs because it failed to provide evidence of lost opportunity costs or distinguish between client time and counsel time.

The court agreed with the respondents, finding no egregious conduct to warrant substantial indemnity costs and applying appellate principles to award only nominal costs of $5,525.47.

The applicant law firm sought to enforce an arbitral costs award of $130,485 against its former clients following an arbitration assessing legal accounts.

The respondent clients brought a cross-application to set aside the award under s. 46(1)3 of the Arbitration Act, 1991, or alternatively for leave to appeal under s. 45(1).

The court dismissed the cross-application, finding the arbitrator had jurisdiction to determine costs and that the alleged errors regarding the departure from the normal costs paradigm were questions of mixed fact and law, not extricable questions of law.

The court granted the application to enforce the costs award.

Following a successful summary judgment for unpaid commissions, the court addressed costs submissions.

The plaintiff sought partial indemnity costs until a demand letter and substantial indemnity thereafter, totaling $77,009.05.

The defendant argued for no costs due to an alleged illegal contract or, alternatively, partial indemnity costs, claiming the plaintiff's request was excessive.

The court found no reason to deprive the successful plaintiff of costs but determined that substantial indemnity was not warranted due to the nature of the settlement offer.

Considering the factors under Rule 57.01 and the proportionality principle, the court fixed partial indemnity costs at $48,000.00, inclusive of disbursements and HST, noting the plaintiff's counsel's billed hours for correspondence and meetings were high for a single-issue matter.