Court of Appeal for Ontario

Date: 2019-12-04 Docket: C66833 Judges: Juriansz, Brown and Miller JJ.A.

Between

Gary Posner and Elaine Kay Plaintiffs (Appellants)

and

Weir Foulds LLP, Clare E. Burns, Bianca V. La Neve, Hull & Hull LLP, Ian M. Hull, and Doreen Lok Yin So Defendants (Respondents)

Counsel

David Marcovitch, for the appellants

Michael R. Kestenberg, for the respondents

Heard and Released Orally

December 4, 2019

On Appeal

On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated March 18, 2019, with reasons reported at 2019 ONSC 1726.

Reasons for Decision

1The motion judge granted the respondents, Hull & Hull LLP, Ian M. Hull and Doreen Lok Yin So (the "Hull Defendants"), summary judgment dismissing the appellants' action against them. The appellants, who are estate trustees of the Estate of James Kay, appeal.

2In the Minutes of Settlement, the appellants, as estate trustees, agreed that the Estate would pay the Hull Defendants a specific sum in respect of their client's legal fees, and the appellants subsequently sought and obtained court approval of the Minutes of Settlement. As the motion judge observed, the appellants made no effort to set aside the consent settlement approval order because it was a "very favorable" order for them and there was "no apparent basis for setting aside the Order on the grounds of fraud, the discovery of new evidence, or otherwise": at para. 74. In those circumstances, we are not persuaded that the motion judge erred in granting summary judgment to the Hull Defendants. In addition, we see no error in principle in the motion judge's conclusion that summary judgment was the fair and efficient way of determining the action against the Hull Defendants.

3The appeal is dismissed.

4Based on the agreement of the parties, the Hull Defendants are entitled to their costs of the appeal fixed in the amount of $8,000.00, inclusive of disbursements and applicable taxes.