Milton A. Davis

A lawyer employed on a contingency fee commission basis resigned to join a competing firm.

The employer law firm terminated him immediately and sought a declaration that he was not entitled to compensation for unbilled work in progress (WIP) or files settled but not yet collected.

The motion judge found the lawyer was entitled to compensation for both.

On appeal, the Court of Appeal held that while the lawyer was entitled to his share of fees for files settled prior to his departure, the employment contract did not provide for compensation for WIP on files that remained at the firm and were settled after his departure.

The Court also upheld the finding that the lawyer did not breach his duty of good faith by merely planning his departure.

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 sought substantial indemnity costs for the entire action after successfully moving to dismiss the proposed class action for delay.

The plaintiffs argued the costs claimed were excessive and that previous steps had already been addressed by prior costs rulings.

The court declined to award substantial indemnity costs, finding the plaintiffs' response to the motion did not warrant an elevated scale.

The court awarded the defendant partial indemnity costs for the delay motion and reimbursement for mediation disbursements, fixing costs at $125,000 all-inclusive.

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 plaintiff brought a motion for leave to appeal the order of Morgan J. dated April 13, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $4,874.14.

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 appellant, Capital Sports Management Inc., appealed a motion judge's order requiring the production of certain solicitor-client documents to the respondent, Trinity Development Group Inc. The motion judge had found an implied joint retainer of the law firm Gowlings by both parties in relation to a joint venture, and ordered production of documents up to the commencement of the litigation.

On appeal, the Divisional Court held that the implied joint retainer terminated in May 2016 when the parties became materially adverse and threatened litigation against each other.

Furthermore, the respondent had acquiesced to Gowlings continuing to act solely for the appellant after that date.

The appeal was allowed, and the production order was narrowed to exclude documents created after May 2016.

The plaintiffs brought a motion to compel the production of financial records relating to mortgages held by the defendants in trust for the plaintiffs, alleging a fraudulent scheme to misappropriate funds.

The defendants argued that the documents should be produced in the ordinary course of litigation.

The court held that beneficiaries of a trust have a proprietary right to records relevant to an accounting for the trust property, separate from the ordinary rules of discovery, and ordered the defendants to produce the requested documents or confirm their non-existence.

Gowling WLG (Canada) LLP sought leave to intervene as a party in an appeal brought by Capital Sports Management Inc. The underlying appeal challenged an order requiring the production of certain solicitor-client documents based on a finding of an implied joint retainer among Capital Sports, Trinity Development Group Inc., and Gowlings.

Gowlings argued it had a direct interest in the appeal because its conduct and advice were directly impugned.

The court granted Gowlings leave to intervene as a party with limited participation rights, finding that its focused submissions would likely be useful to the court in addressing significant issues about solicitor-client privilege after the breakdown of a relationship involving an implied joint retainer.

The moving party sought leave to appeal an order regarding the production of documents.

The Divisional Court granted leave to appeal on a single issue: whether the motion judge erred in ordering the production of documents after May 2016, having found an implied joint retainer among the parties and their counsel.

Costs of the motion were reserved to the panel hearing the appeal.