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
[1] The 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.
[2] In 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.
[3] The appeal is dismissed.
[4] Based 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.
"R.G. Juriansz J.A."
"David Brown J.A."
"B.W. Miller J.A."