Sean Dewart

The defendant moved to permanently stay the action as an abuse of process, arguing the plaintiffs failed to immediately disclose settlement and cooperation agreements reached with co-defendants.

The court found that the agreements fundamentally changed the litigation landscape from an adversarial to a cooperative relationship.

Applying the principles from Aecon and Handley Estate, the court held that the failure to immediately disclose these agreements constituted an abuse of process.

The action was permanently stayed against the moving defendant.

The defendants brought a motion to dismiss the plaintiffs' action for delay under Rules 48.14 and 24.01 of the Rules of Civil Procedure.

The plaintiffs brought a cross-motion to extend the deadline to set the action down for trial.

The court found that the plaintiffs had an acceptable explanation for the delay, which included the time required to comply with undertakings, retain experts, and the impact of the COVID-19 pandemic.

The court also found that the defendants failed to establish non-compensable prejudice.

The defendants' motion was dismissed, and the plaintiffs' cross-motion was granted, establishing a timetable for mandatory mediation and setting the action down for trial.

The plaintiff in a wrongful dismissal action brought a motion to compel answers to questions refused at an examination for discovery.

The refused questions sought production of an external law firm's unredacted fee accounts, investigation file, and unredacted board meeting minutes.

The defendants claimed solicitor-client privilege over the documents.

The court found that the law firm was retained to provide legal advice, making the investigation file privileged.

The court also held that the defendants did not waive privilege by producing the investigation report or by referring to the investigation in the plaintiff's termination letter.

The motion was dismissed.

The defendants, the Law Society of Ontario and several of its employees, brought a motion for summary judgment to dismiss the plaintiff's action for malicious prosecution and misfeasance in public office.

The plaintiff, a lawyer, alleged that the defendants acted with malice and deliberately suppressed evidence during a disciplinary investigation against him.

The court dismissed the motion, finding that there were genuine issues of credibility regarding what the defendants knew and when they knew it, which could not be resolved on a summary judgment motion even with enhanced fact-finding powers.

This is a costs endorsement following the dismissal of an appeal as frivolous and vexatious.

The appellants failed to respond to the respondents' requests for costs.

The court reviewed the submissions and found the partial indemnity costs sought by The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson, Rena Knox, and The Hospital for Sick Children to be reasonable.

The appellants were ordered to pay costs to these respondents.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

The defendants (appellants) appealed a motion judge's order that dismissed their motion to dismiss a solicitor's negligence action for lack of legal capacity.

The plaintiff (respondent) had sued the appellants in his personal capacity, alleging negligence in an appeal they handled for his late brother's Estate.

The Court of Appeal found that the motion judge made a palpable and overriding error by not addressing who retained the appellants; it was the Estate, not the plaintiff personally.

Therefore, the plaintiff lacked the personal capacity to bring the solicitor's negligence claim.

The appeal was allowed, and the action dismissed.

The Appellants appealed a motion judge's decision to enforce a settlement in a failed real estate transaction.

The Appellants argued the motion judge erred by refusing to exercise discretion not to enforce the settlement, claiming new expert evidence changed the case and their new counsel was unaware of the outstanding offer.

The Court of Appeal affirmed the motion judge's decision, finding he properly exercised his discretion by considering all relevant factors and concluding it was not a "rare case" warranting non-enforcement.

The appeal was dismissed.

The appellants, parents whose children were made Crown wards, appealed the dismissal of their action against multiple defendants involved in the child protection proceedings.

The action was dismissed under Rule 2.1.01 of the Rules of Civil Procedure as frivolous and vexatious, being an impermissible attempt to relitigate issues already decided.

The Court of Appeal upheld the dismissal, finding no error in the lower court's decision that the action constituted an abuse of process.

The plaintiffs, members of a local union, brought a motion to amend the style of cause in their action against their international and local unions, which were unincorporated associations.

The plaintiffs sought to exclude themselves from the defendant class, arguing that a litigant cannot be both a plaintiff and a defendant in the same action.

The court granted the motion, allowing the plaintiffs to file an amended statement of claim with the proposed style of cause, which explicitly excluded the plaintiffs from the defendant class, and formally appointed the union presidents as representative defendants nunc pro tunc.

Following the dismissal of the plaintiff's action on a motion for summary judgment, the successful defendants sought costs of $26,814.39 against the plaintiff and his lawyer on a joint and several basis.

The court awarded the requested amount against the plaintiff on a substantial indemnity basis due to the claim being without merit and pursued for delay.

However, the court declined to order costs personally against the plaintiff's lawyer, finding no bad faith or deliberate malicious behaviour.

The defendant brought a motion for a nunc pro tunc order to retroactively authorize communication with his counsel during cross-examination, which was in contravention of a direct court order.

The plaintiffs opposed, denying they had consented to such communication.

The court dismissed the defendant's motion, finding that no consent was proven and, more importantly, that leave of the court was required regardless of any alleged consent, especially given the explicit court order.

The court determined that the breach would be considered when assessing the weight of the defendant's evidence, particularly concerning the alleged unlawful appropriation of gold.

The plaintiff moved to extend the timetable for procedural steps in an action alleging historic sexual assault while in foster care.

The defendant Children's Aid Society cross-moved to dismiss the action for delay.

The court found that while the plaintiff's counsel initially caused delay by unilaterally cancelling discoveries, the defendant subsequently engaged in 'scorched earth' tactics that actively obstructed the litigation's progress.

Applying the Reid criteria, the court granted the extension, dismissed the cross-motion, and ordered the action into case management.

The plaintiff's lawyers brought a motion to remove the defendants' lawyer of record, alleging an actual or perceived conflict of interest in her joint representation of all three defendants.

The plaintiff was never a client of the challenged lawyer.

The court dismissed the motion, finding that the plaintiff failed to establish a possibility of real mischief or that the proper administration of justice required the removal.

The court also found that the motion was brought for a tactical advantage, given the nearly two-year delay in bringing it after the issue was first raised.

The plaintiffs requested a three-month adjournment of a scheduled mini-trial following the discharge of their counsel due to a breakdown in the lawyer-client relationship.

The defendants opposed the adjournment, citing a history of delay and prejudice.

The court balanced the interests of the parties and the administration of justice, noting the lengthy procedural history, the plaintiffs' familiarity with the case, and the prejudice of further delay.

The court dismissed the adjournment request, ordering the mini-trial to proceed as scheduled.

The court issued an endorsement following a case conference regarding whether an examination for discovery should proceed remotely by videoconference or in person during the COVID-19 pandemic.

The plaintiffs objected to a remote examination, citing concerns about assisting counsel, assessing witness demeanor, lack of solemnity, and potential for abuse.

The court, applying Rule 1.08 of the Rules of Civil Procedure, ordered the examination to proceed by videoconference, emphasizing the imperative of technological competency and the need to avoid litigation delays, finding that the benefits of proceeding remotely outweighed the perceived risks.

The plaintiffs in a class action sought leave to amend their claim to add Graham Turner as a defendant, alleging personal liability for knowing receipt of trust funds and professional negligence related to a tax shelter program.

Turner opposed, arguing the claims were statute-barred under the Limitations Act, asserting the plaintiffs could have discovered the material facts earlier through due diligence, including publicly available corporate records.

The court granted the plaintiffs' motion, finding that it could not make a specific finding of fact that the limitation period had expired, particularly regarding Turner's "control" of Escrowagent and his role as counsel, which were not readily discoverable.

Turner was permitted to raise the limitations defence at trial.

The defendant sought partial indemnity costs of $80,111.33 following the dismissal of the plaintiff's professional negligence action.

The self-represented plaintiff objected to the lack of detail and alleged duplication of time by the defendant's counsel.

The court found the time spent generally reasonable but made a modest reduction of $5,000 in fees due to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $74,461.33, noting the plaintiff's $3 million claim was entirely dismissed, the action involved serious allegations against the defendant's professional reputation, and the plaintiff's conduct lengthened the proceeding.

The plaintiff sued its former defence counsel for professional negligence and negligent misrepresentation, alleging the lawyer misrepresented a settlement offer from the Crown in an underlying environmental prosecution, which led the plaintiff's insurer to cap coverage.

The defendants moved for summary judgment.

After a mini-trial to resolve credibility issues, the court found that the lawyer accurately reported the conditional nature of the settlement discussions and did not misrepresent the offer.

The court also found no conflict of interest and held that the lawyer acted reasonably and upon instructions in providing a case assessment memorandum to the insurer.

The summary judgment motion was granted and the action dismissed.

The plaintiff, Themistocles Kyriakopoulos, sued his former criminal appeal lawyer, Gregory Lafontaine, for professional negligence, claiming $3 million in damages.

The plaintiff alleged that the defendant's handling of his criminal appeal fell below the standard of care, leading to the upholding of his conviction for drug trafficking.

The court dismissed the action, primarily finding it statute-barred under the Limitations Act, 2002, as the plaintiff knew or ought to have known of the alleged negligence more than two years before commencing the action.

Additionally, the court found that the plaintiff failed to establish solicitor's negligence without expert evidence and did not prove causation or damages.