Philip Arthur Garbutt

This is an appeal from a Master's order removing Paul Starkman and Starkman Barristers LLP as lawyers of record for the plaintiff/appellant, 8657181 Canada Inc., on the basis that Starkman was likely to be a material witness in the litigation.

The underlying action was a solicitor's negligence claim brought by the plaintiff against its former lawyers.

The court dismissed the appeal, affirming the Master's decision that Starkman's dual role as advocate and likely witness on issues of mitigation and damages created an irreconcilable conflict, impairing the administration of justice.

This endorsement addresses the costs arising from a successful summary judgment motion where the counterclaim brought by Nadine Theresa Smith and Shane Davidson Smith against Capital Direct Lending Corporation was dismissed.

The court awarded Capital Direct Lending Corporation costs on a substantial indemnity basis, finding the Smiths' counterclaim to be meritless, lacking credibility, and based on evasive and delaying conduct.

The billing rates and services rendered by counsel for Capital Direct were deemed appropriate and reasonable.

The plaintiff and all defendants by counterclaim brought motions for summary judgment against the defendants/plaintiffs by counterclaim (the Smiths) concerning a property refinancing.

The Smiths alleged misrepresentation of mortgage debt and breach of trust/negligence by the solicitors involved.

The court found no genuine issue for trial, concluding the Smiths' position lacked credibility due to their failure to disclose the true mortgage amount, their acceptance of the refinancing proceeds, and the absence of any actual loss.

The court granted summary judgment to the moving parties, dismissing the Smiths' counterclaim and ordering full indemnity costs, deeming the action unmeritorious.

The defendant insurer moved for summary judgment dismissing a claim brought by an investor seeking indemnification under a Financial Institution Bond issued to a corporation.

The plaintiff alleged that fraudulent conduct associated with an investment scheme triggered fidelity coverage under the bond.

The court held that the claim was barred by issue estoppel arising from prior Divisional Court findings that the insured corporation had not suffered a fidelity loss and could not be defrauded by its sole directing mind.

The bond provided first‑party indemnity only to the named insured and required discovery, notice, and proof of loss within specified time limits, none of which were satisfied.

The court concluded there was no genuine issue requiring trial and that the plaintiff’s claim could not succeed as a matter of law.