Philip B. Cornish

The plaintiffs, acting personally and as Estate Trustees, sued the defendant lawyer and her firm for negligence, breach of fiduciary duty, and defamation.

The claims arose from the lawyer's representation of the deceased in drafting his Will and a mortgage refinancing transaction, as well as letters the lawyer wrote to third parties after her retainer by the Estate was terminated.

The court dismissed the negligence and fiduciary duty claims, finding no expert evidence of a breach of the standard of care and that the lawyer followed the deceased's instructions.

However, the court found the lawyer defamed the plaintiffs in letters sent to succeeding counsel and the Public Guardian and Trustee.

The letters contained false and disparaging statements and were motivated by malice, defeating the defence of qualified privilege.

The plaintiffs were awarded $61,320 in damages for defamation.

The moving party sought to set aside an earlier order dismissing an appeal in a child protection matter on the basis of delay.

The motion relied on Rules 37.14 and 59.06(2) of the Rules of Civil Procedure, arguing lack of notice, alleged misconduct by opposing counsel, and the existence of new evidence.

The court held that Rule 37.14 did not apply because the earlier motion had proceeded with proper notice and the moving party had appeared through counsel, and further found that the motion was not brought forthwith as required.

The court also rejected reliance on Rule 59.06(2), finding no fraud, no qualifying fresh evidence that would have changed the result, and no basis for alternative relief inconsistent with the original order.

The motion was dismissed and the prior dismissal of the appeal remained in effect.