Peter Marko Hamiwka

The respondent brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) over a residential property and to discharge the CPL.

The applicant father claimed he provided funds for the property's purchase and mortgage, alleging an oral trust agreement.

The court found the applicant failed to make full and fair disclosure of material facts on the ex parte motion, including discrepancies in the amounts allegedly provided and his involvement in the mortgage.

Although a triable issue regarding an interest in land was established, the court held that the equities favoured discharging the CPL, as damages would be an adequate remedy and a sale was pending.

The CPL was discharged on the condition that a portion of the sale proceeds be paid into court.

The moving parties brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $1,500.

The applicants sought an order for the assessment of legal bills rendered by the respondent law firm under the Solicitors Act, arguing that no final bill was delivered or, alternatively, that special circumstances existed.

The court found that all bills delivered prior to and including the last bill in October 2013 were interim bills, meaning no final bill was ever issued, thus permitting an assessment as of right.

The court further determined that even if a limitation period applied, numerous "special circumstances" existed, including the delivery of 39 bills over an eight-year retainer, involvement of 11 lawyers, billing for file reviews, lack of transparency regarding hourly rates, and internal firm pressure to bill for unnecessary work, which would justify an assessment.

The court rejected the respondent's preliminary objections regarding the applicant's affidavit and claims of bad faith based on animosity between counsel.