Samuel Kazen

The plaintiff in a wrongful dismissal action brought a motion to remove the defendant corporation's counsel of record, who was also the sole officer and director of the corporation and a key participant in the employment negotiations at issue.

The defendant brought a cross-motion to strike the plaintiff's exhibits based on settlement privilege and to allow the counsel to act as an agent if removed.

The court dismissed the cross-motion, finding that any privilege had been waived.

The court granted the motion to remove counsel, holding that while his status as a potential witness alone did not disqualify him, his demonstrated personal attachment to the litigation compromised his impartiality as an advocate.

The court also denied leave for him to act as an agent for the corporation.

The appellant and respondent jointly purchased a property and executed a Trust Agreement.

The appellant later moved out and stopped paying carrying costs.

The application judge dismissed the appellant's application for partition and sale, relying on equitable doctrines of laches, acquiescence, and waiver, and awarded him only his initial down payment.

On appeal, the Divisional Court held that equitable defences cannot defeat a legal claim based on a registered Trust Agreement.

The court set aside the lower court's decision, ordered the property to be sold, and directed an accounting before a Master to determine appropriate adjustments for contributions and benefits.

This was a costs decision following dismissal of an application for partition and sale of jointly held property, with a prior order requiring the respondents to pay the applicant $13,000 from any future sale or refinancing.

The applicant sought costs up to the date of the respondents' settlement offer, but the court held the respondents were wholly successful on the real issue: preserving the property's equity and restraining enforcement of bare legal title.

Applying the fair and reasonable costs principles under s. 131 of the Courts of Justice Act and Rule 57.01, the court fixed the respondents' costs at $13,000 on a partial indemnity basis.

The court set that amount off against the applicant's prior $13,000 recovery so that the formal judgment would simply declare the respondents' ownership and dismiss the applicant's claims.

The applicant sought a partition and sale of a property he purchased with his brother-in-law in 1993 under a trust agreement.

The applicant moved out in 1996 and stopped contributing to the mortgage and expenses, leaving the respondents to carry the property for nearly 20 years.

The court dismissed the application for 50% of the proceeds, applying the equitable doctrines of laches, acquiescence, and waiver, finding it would be fundamentally unfair for the applicant to share in the capital appreciation after standing idly by.

The applicant was awarded only the return of his initial $13,000 down payment upon the future sale or refinancing of the property.