R. Das

During a case conference in a joint venture dispute, the parties agreed that the plaintiff's counsel was in a conflict of interest and should be removed as solicitor of record for a jointly-owned corporation in a related solicitor's negligence action.

The court granted the order removing counsel and directed that the corporation would have 30 days to retain new counsel or seek leave to be represented by a non-lawyer.

The court deferred the defendants' request for immediate production of the complete solicitor's file until new counsel is retained.

Following dismissal of a motion brought by a defendant, the court addressed the costs of the motion.

The responding parties sought partial indemnity costs, including a substantial claim by certain defendants who had not delivered a costs outline at the hearing as required by Rule 57.01(6) of the Rules of Civil Procedure.

The court held that failure to provide a costs outline does not automatically bar recovery of costs because s.131(1) of the Courts of Justice Act preserves judicial discretion.

However, the absence of a timely costs outline and the excessive amount claimed justified a significant reduction.

The court fixed costs payable to one set of defendants at $4,000 and to the plaintiff at $2,500.

The defendants brought a motion seeking production of the plaintiff’s former counsel’s litigation file, including time dockets, and an order requiring the plaintiff’s witnesses to re-attend cross-examinations in relation to a pending motion alleging that the action had previously been settled.

The defendants argued that references in the plaintiff’s affidavits waived privilege over the lawyer’s file.

The court held that the affidavits merely described the plaintiff’s settlement position and instructions to counsel and did not constitute a waiver of solicitor-client privilege.

While time dockets may in principle be producible subject to redactions for legal advice, the court found the additional dockets sought were not relevant to the issue of whether the parties had reached a binding settlement agreement.

The motion for production and continued cross-examinations was dismissed.

Following a lengthy condominium dispute trial involving claims of solicitor negligence, construction defects, and condominium governance issues, the court addressed the allocation of costs among multiple parties.

The plaintiff succeeded against the solicitor defendant but failed against several other defendants, including the condominium corporation and property management company.

Applying the principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed reasonable expectations, proportionality, litigation conduct, and Rule 49 settlement offers.

The court issued a Sanderson order requiring the negligent solicitor defendant to pay the costs of the successful condominium defendant, while also apportioning part of the successful property manager’s costs between the plaintiff and the solicitor defendant.

Substantial costs awards were fixed reflecting the complexity and length of the litigation.