Patricia Virc

The defendant, a real estate lawyer, brought a motion to remove the plaintiff's counsel of record.

The defendant argued that he had previously consulted the plaintiff's counsel regarding the very mortgage transactions at issue in the litigation, imparting confidential information.

Furthermore, the defendant argued that the plaintiff's counsel would likely be a necessary witness at trial regarding the plaintiff's efforts to mitigate damages in a related mortgage enforcement action.

The court applied the MacDonald Estate test for conflicts of interest and the Essa factors for lawyers as witnesses.

The court found that the plaintiff's counsel had a disqualifying conflict of interest and was also likely to be a witness at trial.

The motion to remove counsel was granted.

Following the dismissal of the plaintiff's $27 million breach of contract claim on summary judgment, the successful defendant sought costs on a substantial indemnity basis.

The defendant relied on the plaintiff's conduct and a pre-litigation offer to settle for $70,000.

The court found the plaintiff's conduct was not reprehensible and held that Rule 49 cost consequences do not apply to pre-litigation offers.

The court awarded the defendant partial indemnity costs fixed at $180,000, applying a reduction to the defendant's claimed hours and rates for proportionality.

The applicant, a former CEO, brought a motion to remove the respondents' counsel of record, arguing that the lawyers were likely to be called as witnesses regarding his termination and share valuation, and that they had a conflict of interest from previously setting up a trust structure for him.

The court dismissed the motion, finding that the lawyers were acting for the corporation, not the applicant personally, and that the only genuine issue in dispute was the valuation of shares, making the lawyers' evidence regarding alleged oppression irrelevant.

The plaintiff consultant brought a motion to enforce a contractual indemnification provision for the advance payment of legal fees by the defendant companies.

The motion was brought before the close of pleadings.

The court found that the corporate indemnity provisions of the CBCA and OBCA did not apply because the consultant was a corporation, not an individual officer or director.

However, the court dismissed the motion, concluding that the relief sought effectively amounted to a partial summary judgment or a mandatory injunction, and the plaintiff had not complied with the requirements for either.

The applicants brought a motion to strike portions of the respondents' affidavits filed in a pending application regarding a right of way dispute and defamation claims.

The applicants argued the impugned paragraphs contained irrelevant, prejudicial, and hearsay evidence.

The court dismissed the motion, finding that the evidence was either withdrawn from objection by the applicants or was admissible as it went to the respondents' state of mind, responded directly to issues raised by the applicants, or provided relevant narrative history rather than being offered for the truth of its contents.

A former director and investor brought a motion for summary judgment alleging negligent misrepresentation by corporate directors, the chief financial officer, and an engineering consultant arising from a private placement investment that later became worthless after the corporation entered receivership.

The plaintiff alleged misrepresentations concerning reserve reports, a bank borrowing base notice, and the intended use of proceeds of the financing.

The court held that many alleged representations were made to the plaintiff in his capacity as a director rather than as an investor, raising significant duty of care issues and rendering reliance problematic.

The court also found genuine issues requiring a trial regarding whether misrepresentations occurred, whether they were negligent, and whether reliance was established.

In addition, most claims were found to be statute‑barred under the Limitations Act, 2002.

Multiple motions were brought in related commercial proceedings seeking security for costs and leave to amend pleadings.

The defendants sought security for costs against an individual plaintiff on the basis that the action was allegedly frivolous and vexatious and that the plaintiff lacked sufficient assets in Ontario.

The court held that the claim was not clearly devoid of merit and there was insufficient evidence that the plaintiff lacked assets, so security was refused.

In separate corporate actions, the moving parties also sought security for costs against a corporate plaintiff, but the court found their evidence of financial insufficiency was speculative and failed to meet the Rule 56.01 threshold.

However, leave to amend the statements of defence to challenge the validity of an assignment of claims and to plead reliance on legal advice was granted, as no prejudice would result.