M. Kestenberg

The defendant brought a motion to enforce a settlement agreement reached between counsel.

The plaintiff opposed the motion, arguing its former lawyer settled the action contrary to instructions and breached his duty of loyalty.

The court reviewed the communications between the plaintiff's principal and its former lawyer, finding the lawyer acted competently, loyally, and upon express instructions to settle.

The court found a binding settlement agreement existed and saw no reason to exercise its discretion to refuse enforcement.

The motion was granted, the action was dismissed, and costs of $10,000 were awarded to the defendant.

The moving defendants in a solicitor negligence action brought a motion to remove the plaintiff's lawyer from the record and for production of his litigation files.

The defendants argued the lawyer was likely to be a material witness regarding the plaintiff's efforts to mitigate damages on an appeal.

The court granted the motion to remove the lawyer, finding he was likely to be called as a witness and his role as advocate could not be reconciled with his role as a witness.

The motion for production of the litigation files was dismissed as premature and overbroad.

The plaintiff brought a motion to reinstate a professional negligence action that had been administratively dismissed and dormant for over two years.

The defendants brought a cross-motion to dismiss the action for delay under Rule 48.14.

The court found that although there was a two-year unexplained delay, the defendants suffered no non-compensable prejudice and had not demonstrated any urgency in moving the case along.

The court allowed the plaintiff's motion, reinstated the action, and dismissed the defendants' cross-motion.

The defendant brought a motion to compel the plaintiff to produce its lawyer's transaction file, arguing the plaintiff waived solicitor-client privilege by filing an affidavit from its transaction counsel on an upcoming summary judgment motion.

The court reviewed the principles of deemed waiver and found that the lawyer's affidavit contained numerous substantive statements regarding legal advice, the plaintiff's state of mind, and selective disclosure of privileged communications.

The court concluded that fairness and consistency required the production of the balance of the transaction file, excluding retainer agreements, dockets, and accounts.

The plaintiffs brought an action for defamation against a lawyer and the law firm with which she practiced in association.

The defendant law firm brought a motion for summary judgment to dismiss the action against it, arguing it was not vicariously liable for the lawyer's actions.

The court found that the lawyer was not a partner or employee of the firm, and the firm did not control her practice.

The firm's letterhead and marketing materials clearly indicated she was 'Practicing in Association not in Partnership'.

The court granted summary judgment and dismissed the action against the law firm.

During a lengthy matrimonial trial, the applicant alleged that the respondent's former counsel, SimpsonWigle LLP, breached a Mareva injunction by receiving payments from frozen offshore companies.

The parties agreed to defer the contempt hearing against the law firm until after the trial judgment.

At the commencement of the contempt hearing, the law firm brought a motion to dismiss, arguing the court lacked jurisdiction because the Mareva order was no longer live and operative.

The court dismissed the motion, finding no requirement in law that an order must be live and operative when a contempt motion is brought or a finding is made, particularly where the purpose is to address a deliberate breach rather than to coerce compliance.

In the context of a family law dispute, the applicant brought a contempt motion against the respondent's former lawyers for allegedly receiving funds in breach of a Mareva injunction.

Both the applicant and the alleged contemnors brought motions for documentary production.

The court held that because contempt is a quasi-criminal proceeding, the alleged contemnors are not subject to the automatic disclosure obligations of the Rules of Civil Procedure and have a right against self-incrimination.

The court dismissed the applicant's request for an affidavit of documents but granted a preservation order against the lawyers.

The court also ordered the applicant to produce relevant communications to the alleged contemnors to allow them to make full answer and defence.

The applicant corporation sought court approval of a plan of arrangement under s. 182 of the Ontario Business Corporations Act involving the acquisition of its shares by another corporation.

Applying the framework in BCE Inc. v. 1976 Debentureholders, the court considered whether statutory procedures were followed, whether the application was brought in good faith, and whether the arrangement was fair and reasonable.

The court concluded that the arrangement had a valid business purpose, had been approved overwhelmingly by shareholders, and provided a significant premium to shareholders.

The court declined to rely on a fairness opinion contained in the management proxy circular because it constituted opinion evidence that failed to meet the admissibility requirements under the Rules of Civil Procedure, as it did not disclose the analytical basis for the opinion.

The arrangement was nevertheless approved on the basis of other admissible evidence.

Following dismissal of a discovery motion seeking answers to refused questions on examinations related to a motion for particulars, the court addressed the issue of costs.

The successful defendants sought partial indemnity costs exceeding $13,000, while the plaintiff argued for a significantly reduced amount.

Applying the discretionary framework under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized proportionality and fairness.

Considering the extensive materials, length of the hearing, and the importance of the issues, the court found the defendants largely entitled to their claimed costs but applied a modest reduction for unspecified time responding to undertakings.

Costs were fixed at $12,000 inclusive of HST and disbursements.

The defendants brought motions for summary judgment seeking dismissal of an investment loss claim on the basis that it was commenced outside the two‑year limitation period under the Limitations Act, 2002.

The remaining plaintiffs alleged losses arising from an offshore hedge fund investment and argued that the limitation period should begin only after they received legal advice.

The court held that the plaintiffs had actual knowledge of the material facts required under s. 5(1)(a) when they learned their investment was lost and expressed their intention to sue.

The court rejected the argument that a plaintiff’s lack of financial sophistication delays discoverability until legal advice is obtained.

The claim was discovered no later than July 31, 2007 and the September 2009 statement of claim was therefore statute‑barred.

The plaintiff brought a refusals motion seeking answers to numerous questions refused on examinations conducted in connection with a pending motion for particulars in a professional negligence and breach of contract action against former lawyers.

The plaintiff argued that the defendants’ affidavit asserting lack of knowledge regarding certain particulars waived solicitor-client privilege over the defendants’ files and related information.

The court held that any waiver of privilege was limited to the knowledge addressed in the affidavit at the time it was sworn and did not extend to the entirety of counsel’s files.

The requested questions and document production exceeded the scope of the limited waiver and intruded upon solicitor-client privilege.

The court dismissed the refusals motion and confirmed the propriety of the defendants’ redactions and document production.

The defendants, a law firm and one of its lawyers, brought a motion for summary judgment to dismiss the plaintiffs' action for intentional infliction of mental suffering, negligence, and breach of contract.

The action arose from the defendants' prior representation of the plaintiffs in two litigation matters.

The court granted the motion and dismissed the action, finding that although there were genuine issues of material fact regarding negligence and breach of contract, the plaintiffs failed to produce any evidence of damages.

Without evidence of damages, the claim had no chance of success, making a trial unnecessary.

The plaintiff by counterclaim brought a motion to amend pleadings to add an investment subsidiary as a defendant to the counterclaim after the limitation period had allegedly expired.

The court considered s. 21 of the Limitations Act, 2002 and the doctrine of misnomer.

It found that the counterclaimant had always intended to pursue claims against both the banking and investment arms of the financial institution and that the proposed defendant knew it was the intended defendant.

The amendment therefore constituted a correctable misnomer rather than the addition of a new party after the limitation period.

The motion to add the party was granted, subject to further particulars being provided for certain defamation allegations.

The applicant corporation sought a final order approving a plan of arrangement under s. 182 of the Ontario Business Corporations Act in connection with the acquisition of all outstanding shares by a subsidiary of the purchaser corporation for cash consideration.

The court applied the framework from BCE Inc. v. 1976 Debentureholders, requiring satisfaction that the transaction constituted a statutory arrangement, that procedural requirements were met, that the application was brought in good faith, and that the arrangement was fair and reasonable.

Evidence demonstrated a robust sale process, board oversight through a special committee, independent financial advice, and a significant premium to market value.

Shareholders overwhelmingly approved the arrangement, no dissent rights were exercised, and no opposition appeared.

The court concluded that the arrangement served a valid business purpose and fairly balanced the interests of affected stakeholders.