Robert G. Plate

The appellants appealed the dismissal of their motion to set aside a 2014 consent dismissal and underlying settlement of a personal injury action.

The settlement was negotiated by their former lawyer, who misappropriated the funds and failed to obtain court approval under Rule 7.08 for the injured plaintiff, who was a party under disability.

The Court of Appeal upheld the motion judge's decision, finding she correctly applied the Book factors.

The insurer had acted in good faith without knowledge of the disability, and the settlement itself was not unreasonable.

The court held that the lawyer's fraud did not impugn the reasonableness of the settlement from the perspective of the tort claim.

The plaintiffs moved to set aside a dismissal order and a full and final release from a 2013 settlement, arguing the injured plaintiff was under a disability and the settlement was never approved by the court under Rule 7.08.

The plaintiffs' former lawyer had fraudulently settled the action without their knowledge and misappropriated the funds.

The court found the plaintiff was under a disability at the time, but declined to set aside the settlement because the tort insurer acted in good faith, was unaware of the disability, and the settlement itself was not unconscionable.

The motion was dismissed.

This is an appeal concerning a dispute over the retention of a deposit on a commercial property after the agreement of purchase and sale (APS) was terminated.

The motion judge had found that the respondents (buyers) were entitled to terminate the APS and recover their $350,000 deposit because the appellant (seller) failed to comply with requisitions to remove an open building permit, which constituted a valid objection to title.

The appellant's claims for the deposit and punitive damages were denied.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that the outstanding work permit entitled the respondents to terminate the APS, as it prevented the appellant from conveying good and marketable title.

The respondent law firm brought a motion for security for costs against the applicant, citing the applicant's non-residency and the alleged frivolous and vexatious nature of the application, coupled with insufficient assets.

The court dismissed the motion, finding that an order for security for costs would not be just.

The court emphasized the respondent's unreasonable delay in bringing the motion and the protective purpose of the Solicitors Act, which facilitates client assessment of solicitor accounts.

The court also found merit in the applicant's assessment claim.

The plaintiffs brought a motion to remove the defendants' counsel and their law firm from the record for an upcoming pending motion.

The plaintiffs argued that because partners of the law firm had sworn affidavits for the pending motion, the firm's continued representation created a conflict of interest and an appearance of impropriety.

The court dismissed the motion, finding it premature and noting that the practice of lawyers appearing on motions where their colleagues have filed affidavits is common and acceptable in Ontario civil litigation.

The court awarded costs of $11,580 to the defendants.

The applicant sought an order permitting the assessment of the respondent law firm's accounts where the court file no longer contained the requisition for assessment and the registrar's 2018 order referred to missing attached bills.

The respondent argued the registrar lacked jurisdiction and that the assessment process was therefore a nullity, while both parties accepted the court had inherent jurisdiction to cure the procedural defect.

The court held the missing requisition resulted from court administration error, not any fault of the applicant, and exercised its discretion to preserve the applicant's right to a solicitor-client assessment under the Solicitors Act.

The respondent's reliance on the applicant's prior litigation misconduct in other proceedings was rejected as irrelevant to the present matter.

The assessment hearing was directed to proceed on a date to be scheduled, with no costs.

The plaintiff in a Simplified Procedure action brought a motion to extend the time for examination for discovery of the defendant's representative by 60 minutes, later reduced to 30 minutes.

The request stemmed from technical difficulties in accessing the full surveillance footage of the incident prior to and during the initial discovery, despite an understanding between counsel that further questioning would occur once the footage was viewed.

The court granted the extension, finding it had jurisdiction under Rules 3.02(1) and 2.03 of the Rules of Civil Procedure.

The court determined that extending the discovery was just and reasonable given the circumstances, the importance of the surveillance to the litigation, and the reliance of plaintiff's counsel on the agreement with the defendant's counsel.

The defendant and statutory third party brought a motion to compel the plaintiffs to attend in-person defence medical examinations, including physiatry assessments for both plaintiffs and a psychiatric assessment for one plaintiff, after the action had been set down for trial.

The court granted leave under Rule 48.04(1), finding that the plaintiffs' late delivery of numerous expert reports and medical records demonstrating a significant and unexpected deterioration in their conditions constituted a substantial change in circumstances.

The court ordered the plaintiffs to attend the requested examinations to ensure trial fairness and allow the defendants an adequate opportunity to meet the plaintiffs' case.

The defendants in a solicitor negligence action brought a motion to compel the plaintiff to attend orthopaedic and psychiatric defence medical examinations.

The action had already been set down for trial, requiring the defendants to seek leave under Rule 48.04.

The court applied the flexible approach to granting leave, noting that the trial date was not in jeopardy and that trial fairness required the defendants to have an opportunity to respond to the plaintiff's expert reports.

Despite the plaintiff's concerns regarding the COVID-19 pandemic and travel, the court ordered a virtual psychiatric assessment and an in-person orthopaedic assessment, finding that safety protocols at the hospital would adequately address the risks.

The applicant law firm, Morse Shannon LLP, sought charging orders against any amounts recovered by the plaintiffs in two personal injury actions (Hughes and Nasir) where it had acted as agent counsel for the respondent solicitor, Fancy Barristers P.C. and Hassan A. Fancy.

The agency agreements were terminated, and the applicant's accounts for fees and disbursements remained unpaid.

The court granted the charging orders, finding that the applicant's work was instrumental in recovering or preserving the clients' property and that there was sufficient evidence that the accounts would not be paid.

The court also addressed the respondent's irrelevant allegations of misconduct and awarded costs to the applicant.

The applicant solicitor moved to oppose confirmation of an assessment officer's report reducing a legal account rendered in relation to motor vehicle accident benefits litigation.

The court held that the assessment officer's reasons were inadequate because they did not meaningfully apply the nine Cohen factors and failed to demonstrate an intelligible path of reasoning, amounting to an error in principle.

Rather than remit the matter for a further assessment, the court conducted the assessment itself.

Applying the relevant factors, the court allowed a $100,000 success premium and fixed the fee at $250,000, while otherwise confirming the report and certificate.

The moving party (defendant) in a solicitor's negligence action sought leave to amend his statement of defence to plead an alternative defence of discoverability regarding a missed limitation period for a 2001 motor vehicle accident.

The responding party (plaintiff) opposed the amendment, arguing it would cause irreparable prejudice.

The Master granted the motion, finding that the responding party's evidence of prejudice was insufficient and that any potential prejudice could be compensated by costs.

The defendant brought a motion for leave to amend the amended statement of defence in a solicitor’s negligence action alleging failure to commence a motor vehicle accident claim.

The proposed amendments sought to plead an alternative defence based on discoverability and the timing of the limitation period.

The court applied Rule 26.01 of the Rules of Civil Procedure, which requires that amendments be granted unless non-compensable prejudice would result.

The plaintiff argued that allowing the amendment could eliminate her cause of action and that she had relied on the absence of a discoverability defence.

The court held that the plaintiff failed to provide sufficient evidence of prejudice that could not be compensated by costs or adjournment and granted leave to amend.

Following reasons for judgment in a medical malpractice action, the court considered supplementary costs submissions from the plaintiffs seeking recovery for additional expert and transcript expenses incurred after the initial costs materials were delivered.

The defendant argued the supplementary expert evidence was unnecessary due to the plaintiffs’ change in trial strategy.

The court held that litigants may reasonably adjust trial strategy and should not be penalized in costs where services appeared necessary at the time they were obtained.

The court accepted that the supplementary expert report and transcripts used for closing submissions were reasonable litigation expenses.

The plaintiffs were awarded the additional costs sought.

The plaintiffs brought a medical malpractice action alleging that a physician performed a surgical procedure without consent during ovarian cyst surgery, resulting in sterilization.

The claim ultimately proceeded solely in battery after the plaintiffs abandoned negligence.

The court held that applying Filshie clips to the left fallopian tube constituted a separate procedure that fell outside the scope of the consent provided, and there was no emergency justifying the step.

General consent language permitting additional procedures during surgery did not authorize a sterilizing intervention where the patient had expressed a desire to preserve fertility.

The physician was therefore liable in battery.