Sandra E. Dawe

The defendant, Krandel, brought a motion seeking leave to issue a counterclaim *nunc pro tunc* against Dianne Herzog in her personal capacity, add her as a defendant to the counterclaim, and extend the time for service.

The original counterclaim, filed in a professional negligence action, was delivered but not properly issued or titled against Dianne Herzog personally, who was not an original party.

The limitation period for the counterclaim had expired.

The court granted the motion, finding that Dianne Herzog had actual knowledge of the counterclaim before the limitation period expired, thereby rebutting the presumption of prejudice.

The court emphasized that denying the motion would be a greater injustice and that the case was still in its early stages, making the regularization of the pleading consistent with the overarching principle of civil litigation to determine proceedings on their merits.

This appeal concerned the interpretation of a force majeure clause in commercial leases between school boards and a multi-purpose sporting facility.

Due to province-wide COVID-19 lockdowns, the facility was unable to open, and the school boards sought rent abatement under the force majeure clause.

The application judge found the clause applied and rent was abated.

The appellant (landlord) argued that the clause required the landlord to explicitly "claim" a force majeure event for rent abatement to occur, which they had not done.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation.

The court affirmed that the landlord's objective inability to provide the leased premises due to the lockdown triggered the rent abatement, regardless of an explicit claim by the landlord.

In a long-standing and highly acrimonious family trust dispute, the court considered multiple motions, including motions to dismiss for delay and abuse of process, and motions for a further and better accounting.

The court found that the plaintiffs (two of the sons) had engaged in an abuse of process through a 'scorched-earth' litigation strategy, including failing to produce relevant documents they controlled, changing counsel repeatedly, refusing to mediate, and launching collateral attacks.

Consequently, the court dismissed their actions.

However, recognizing that the trusts still required an accounting for the benefit of the other beneficiaries (the grandchildren), the court ordered the remaining trustees to provide a further and better accounting, and ordered the redemption of the matriarch's shares in the underlying holding company.

The appellant sued the directors and auditors of a credit union after losing his $5 million investment, alleging misrepresentations in an offering statement.

Midway through the trial, the appellant sought to amend his statement of claim to allege a new misrepresentation regarding the credit union's failure to obtain property appraisals.

The trial judge refused the amendment, finding it asserted a new cause of action that was discoverable years earlier and was therefore statute-barred.

The Court of Appeal upheld the trial judge's decision, confirming that the proposed amendment relied on a different act and a separate failure to disclose, which was not encompassed by the original pleadings.

The applicant brought an application within an ongoing oppression remedy proceeding seeking repayment of a shareholder loan.

The applicant sought to impose enterprise liability on related companies and personal liability on the estate of his former business partner.

The court found that the former partner had engaged in oppressive conduct by diverting corporate funds for personal benefit, defeating the applicant's reasonable expectations.

The court held the estate personally liable for the immediate repayment of $2,421,300 of the shareholder loan, but declined to impose enterprise liability on the related companies or personal liability on the estate trustee.

The plaintiff successfully moved to set aside a registrar's order dismissing the action for delay.

In these supplementary reasons for costs, the plaintiff sought partial indemnity costs of approximately $10,000, while the defendant sought costs of the motion and costs thrown away, arguing the plaintiff was granted an indulgence.

The court held that because the plaintiff received an indulgence, it was fair to deprive the successful plaintiff of its costs.

The court also declined to award the defendant costs thrown away, finding no wasted steps analogous to setting aside a default judgment.

No order for costs was made.

The plaintiff invested $5 million in preferred shares of a financially troubled credit union pursuant to an offering statement.

The credit union was subsequently placed into administration and liquidation following the discovery of a complex mortgage fraud and the issuance of large, improper loans.

The plaintiff sued the credit union's directors and external auditors, alleging a material misrepresentation in the offering statement regarding the use of 'appraised values' for mortgage approvals.

The Superior Court of Justice dismissed the action, finding no material misrepresentation, no causation, and that the defendants had established a statutory defence.

The court also denied the plaintiff's mid-trial motion to amend the pleadings, ruling the new allegation was statute-barred.

The plaintiff brought a motion to set aside a registrar's order dismissing its professional negligence action for delay.

The court applied the contextual test for setting aside an administrative dismissal, weighing factors including the explanation for delay, inadvertence, promptness of the motion, and prejudice.

Although the plaintiff failed to adequately explain a period of delay, the court found the deadline was missed due to inadvertence, the motion was brought promptly, and there was no actual prejudice to the defendant.

The motion was granted and the dismissal order was set aside.

The appellant, Georgian Properties Corporation, appealed a summary judgment that reduced the principal amounts owing under two vendor take-back mortgages given by the respondent condominium corporation to the developer.

The mortgages related to HVAC service units and unsold parking and storage units.

The motion judge found the developer's revised disclosure documents infringed the Condominium Act and that both transactions were oppressive.

The principal amounts were reduced to reflect fair market value.

The Court of Appeal upheld the motion judge's findings regarding insufficient disclosure and oppression, dismissing the appeal and cross-appeal.

The appellant appealed the dismissal of his professional negligence action against a lawyer and an accounting firm on summary judgment.

The appellant had sold his software company to Microsoft in 1999 and received approximately $4.8 million through a family trust.

The Canada Revenue Agency reassessed him for approximately $2.4 million in taxes, interest and penalties, claiming section 75(2) of the Income Tax Act applied.

The appellant obtained rectification orders and ultimately had his tax liability reduced to approximately $57,000 after the Federal Court of Appeal ruled that section 75(2) did not apply.

The appellant claimed damages from the respondents for professional negligence, alleging they failed to advise him of the CRA's position and the likely expenses of disputing it.

The motion judge dismissed the claim against the lawyer for lack of evidence of retainer regarding the trust, and dismissed the claim against the accounting firm for failure to provide expert evidence establishing a breach of the standard of care.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's application of the expert evidence requirement for professional negligence claims.

The appellants Cadesky & Associates and Barry Seltzer appealed a judgment of the Superior Court of Justice.

The cross-appellant George Jones abandoned the cross-appeal.

The Court of Appeal fixed costs in the amount of $3,750.00 for each of the cross-respondents.

The plaintiff sued an accounting firm and a lawyer for professional negligence relating to the preparation and implementation of a family trust for tax planning purposes.

The defendants and a third-party lawyer brought motions for summary judgment to dismiss the claims.

The court found no genuine issue requiring a trial, concluding that neither the lawyer nor the accounting firm were retained to form the trust or prepare the trust deed.

The court granted summary judgment and dismissed the plaintiff's claims, which consequently dismissed the third-party claims for contribution and indemnity.

The defendant sought costs after being partially successful on a motion to strike the plaintiffs' claim.

The court found that while the defendant succeeded in obtaining a stay and requiring the plaintiffs to add her to an existing action, she had over-reached by seeking a complete dismissal of the claim.

Because the defendant's unsuccessful arguments consumed significant time and posed an existential threat to the plaintiffs' case, the court concluded that success was truly divided.

Consequently, the court ordered each party to bear their own costs of the motion.

The defendant moved to strike the claim as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The court found the claim was not frivolous or vexatious but constituted an abuse of process because the conspiracy and fraud claims were substantially identical to those in a pending "Weeks Action," and the plaintiffs commenced a new action instead of seeking leave to amend the existing one.

The court declined to strike the action entirely, instead staying the proceeding to allow the plaintiffs to seek leave to add the defendant to the "Weeks Action." The stay could be lifted if the plaintiffs were unable to add the defendant due to prejudice or limitation periods arising after this action's commencement.

The plaintiff brought an action alleging negligence against accountants and a lawyer arising from tax planning involving a family trust created to facilitate the sale of shares in a technology company.

The defendants moved for summary judgment, arguing the claims were barred by limitation periods, unsupported by expert evidence, or defeated by illegality relating to the alleged backdating of the trust.

The court held that the record revealed numerous disputed factual issues, including the scope of the defendants’ retainers, the timing and legality of the trust’s creation, and the plaintiff’s knowledge of potential tax problems.

Applying the full appreciation test from Combined Air Mechanical Services Inc. v. Flesch, the court concluded that the evidentiary conflicts required the full forensic process of a trial.

Both summary judgment motions were dismissed with costs in the cause.

In a supplementary endorsement addressing costs following a motion brought by a court-appointed forensic accountant seeking payment of additional fees, the court considered multiple claims for costs among parties and against the expert.

The motion seeking payment of an additional $288,000 beyond previously authorized funds had been dismissed.

The court reviewed the principles governing costs, including the limited circumstances in which costs may be awarded against non-parties under s.131 of the Courts of Justice Act and the court’s inherent jurisdiction.

The court concluded that the circumstances did not justify a costs award against the court-appointed expert or the Children’s Lawyer.

Claims for costs among the parties were largely rejected, with any potential claims reserved for determination by the trial judge.

A court-appointed forensic accountant brought a motion seeking payment of a final invoice for investigative work performed in complex estate and trust litigation following the death of a family patriarch.

The expert had previously estimated that completion of the mandate would cost approximately $100,000 but later submitted a substantially larger final invoice.

The court held that the expert bore the onus of justifying the amount and found the explanation for the dramatic increase unpersuasive.

In the circumstances, the expert was required to abide by the prior representation to the court and the motion for payment of the additional amount was dismissed.

Requests for production of the expert’s working papers were found premature, and a request by other professionals for reimbursement of costs was deferred to the next case management judge.

Following an order striking the plaintiff’s action without leave to amend, the defendants sought costs for both the struck 2012 action and an earlier withdrawn 2008 action.

The self‑represented plaintiff objected to the amounts as excessive but provided no particulars.

The court held that the hourly rates charged by counsel were reasonable and could be awarded on a partial indemnity basis, and alternatively justified substantial indemnity costs given the plaintiff’s allegations of fraud and conspiracy and his abuse of the court’s process.

Considering the factors under Rule 57.01(1), the court fixed costs for the defendants for both actions.

The moving defendants sought to strike the plaintiff’s statement of claim alleging fraud, conspiracy, abuse of process, and related torts arising from earlier bankruptcy litigation.

The claim effectively alleged that opposing counsel, the bankruptcy trustee, and others fabricated evidence that led to an adverse judgment in prior proceedings.

The court held that the pleading failed to meet the requirement that fraud be pleaded with particularity and that the action constituted an impermissible collateral attack and relitigation of issues already decided and upheld on appeal.

The doctrines of issue estoppel and abuse of process barred the claim.

The court struck the statement of claim without leave to amend and awarded costs.

The appellants appealed an order striking their claim for equitable set-off.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no basis on the pleading for the claim to succeed, as it was made in respect of the actions of a corporate non-party not alleged to be wholly owned by the respondent.