Sean Dewart

The appellants sued their former lawyers for solicitor's negligence following a finding of securities fraud by the Ontario Securities Commission (OSC).

The motion judge dismissed the majority of the claims as an abusive collateral attack on the OSC decision, relying on the doctrine of issue estoppel, but ordered a mini-trial under Rule 20.04(2.2) for the remaining claim regarding negligent settlement advice.

The Court of Appeal upheld the dismissal, confirming that civil claims depending on showing a conviction would not have occurred but for a lawyer's conduct constitute an improper collateral attack.

The Court also held there is no basis to appeal an order directing a mini-trial as part of a summary judgment process.

During a legal strike, graduate student teaching assistants engaged in picketing and protests.

Following the strike, the university disciplined them under the Student Code of Conduct.

The students sought judicial review, arguing that under the Back to Class Act and the Labour Relations Act, a labour arbitrator had exclusive jurisdiction over discipline related to strike activities.

The Divisional Court agreed and quashed the university tribunal's decision.

The Court of Appeal dismissed the university's appeal, confirming that the specific, strike-ending legislation mandated that any dispute concerning discipline for activities during the strike be determined through grievance arbitration.

The applicant sought judicial review of a decision by the Administrator to direct the withdrawal of disciplinary proceedings against a police officer.

Following case management teleconferences, the parties agreed in principle to a schedule for the application and a tentative resolution regarding a stay.

The court issued a case management endorsement setting the hearing for October 27, 2020, and providing procedural directions for the filing of materials.

The respondent, a re-elected city councillor, filed a supplementary financial statement showing he exceeded the allowable campaign spending limit for expressions of appreciation.

Under s. 88.23(2) of the Municipal Elections Act, this triggered automatic forfeiture of his office.

The application judge granted relief from forfeiture, finding the error was inadvertent.

The Court of Appeal allowed the appeal, holding that there is no jurisdiction to grant relief from forfeiture under s. 98 of the Courts of Justice Act because s. 88.23(2) is a statutory penalty and the legislative scheme deliberately precludes such relief.

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 appellants, the Chief of the Durham Regional Police Service and the Durham Regional Police Services Board, sought judicial review of an interim order made by the Ontario Civilian Police Commission.

The Commission had appointed an Administrator to oversee disciplinary proceedings, promotions, and secondary employment within the Service, citing an emergency and a crisis of confidence.

The Divisional Court dismissed the application, finding that the Commission had the jurisdiction to make the interim order without notice or a hearing under section 24(1) of the Police Services Act.

The Court held that the decision was reasonable, did not breach procedural fairness, and did not raise a reasonable apprehension of bias.

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 court-appointed receiver sought approval of an agreement of purchase and sale for two multi-residential properties.

The mortgagor objected to the sale price, and the first mortgagee objected to the sale unless its yield maintenance penalty of $1.7 million was paid from the proceeds.

Applying the Soundair principles, the court approved the sale, finding the receiver's process fair and the price reasonable.

However, the court ordered the $1.7 million held in trust pending a trial of an issue to determine the first mortgagee's entitlement to the yield maintenance penalty.

The applicant union sought judicial review of an arbitration award dismissing its grievance against the employer airline.

The union claimed the employer breached a promise made during collective bargaining not to award travel passes with a higher priority to any other unionized group.

The arbitrator found the promise was narrow and did not extend to discretionary special passes awarded to pilots.

The Divisional Court held the arbitrator's decision was reasonable and that the arbitrator did not err in failing to address a sex discrimination argument that was not properly raised at the hearing.

The application for judicial review was 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.

The applicants, graduate students and teaching assistants at York University, sought judicial review of a University Tribunal decision disciplining them for misconduct during a legal strike.

The Tribunal had assumed jurisdiction under the Student Code.

The Divisional Court quashed the Tribunal's decision, holding that the essential character of the dispute was labour-related and fell within the exclusive jurisdiction of a labour arbitrator under the Labour Relations Act and the Back to Class Act.

The Court also found exceptional circumstances to hear the judicial review despite the applicants not exhausting internal appeals, and noted the Tribunal's process was procedurally unfair.

The moving party sought an extension of time to serve and file a notice of appeal from an order dismissing a motion to set aside a default judgment.

The notice of appeal was served one day late due to inadvertence of counsel.

The respondent opposed the motion, arguing prejudice, the moving party's pattern of breaches of court orders, and lack of merit of the proposed appeal.

The court granted the extension, finding that the one-day delay was minimal and explained, that no real prejudice resulted from the delay itself, that the moving party's prior defaults had been addressed through costs orders, and that the proposed appeal was not so devoid of merit as to warrant denial of the right to appeal.

The appellant, president of the Amalgamated Transit Union (International), appealed the dismissal of a motion to strike an action brought by four rank-and-file members of the International's Toronto-based affiliate, Local 113.

The members sought a declaration that certain provisions of the International's Constitution were void for unconscionability, arguing these provisions prevented disaffiliation.

The motion judge dismissed the motion to strike but granted a temporary stay pending exhaustion of the International's constitutional amendment process.

The Court of Appeal upheld both the dismissal of the motion to strike and the temporary stay, finding the action presented arguable issues of unconscionability and that the court had jurisdiction to determine the matter.

The appellant appealed the motion judge's refusal to restore his wrongful dismissal action to the trial list.

The action had been struck from the trial list in 2016 after the appellant failed to diligently pursue documents from a third party (Siemens) that he claimed were necessary to prove his claim for unpaid commissions.

The Court of Appeal upheld the motion judge's decision, finding that the appellant had provided no reasonable explanation for his delay in obtaining the required documents and that the respondents would suffer non-compensable prejudice if the action were restored.

The appeal was dismissed with costs.

The plaintiff, Hilary Salmon, sued her former lawyer, Jonathan Keslassy, and his firm, Garfin Zeidenberg LLP, for solicitor's negligence.

Salmon alleged that Keslassy provided incorrect advice regarding the limitation period for a potential defamation lawsuit against the Toronto Star.

The court assessed the credibility of both Salmon and Keslassy concerning a pivotal phone call, finding Keslassy's testimony more credible and reliable.

The court concluded that Keslassy had provided the correct limitation period advice (six weeks for notice, three months to commence action).

Consequently, Salmon failed to prove solicitor's negligence.

The court also hypothetically considered the merits of the defamation claim, finding the article likely defamatory but that the defence of responsible communication on matters of public interest would have succeeded, leading to only nominal damages.

The action was dismissed.

The appellant lawyer appealed a decision of the Law Society Tribunal's Appeal Division, which upheld a Hearing Division finding of professional misconduct and a $200,000 costs award.

The misconduct related to the appellant's inadequate preparation of Personal Information Forms for Hungarian Roma refugee claimants and his failure to adequately supervise his staff.

The Divisional Court dismissed the appeal, finding that the Appeal Panel reasonably concluded the Hearing Panel's findings of fact, credibility assessments, and costs award were supported by the evidence and fell within a range of reasonable outcomes.

The defendants, Alex G. Krek and Francka Krek, brought a motion to dismiss the plaintiffs', William and Dianne Klein, action for delay, pursuant to Rule 24.01(1)(c) of the Rules of Civil Procedure.

The action, stemming from an oil spill 29 years prior, was commenced in 2011 and had seen significant delays and missed timetables.

The Kreks argued the delay was inordinate, inexcusable, and caused prejudice, citing the death of a witness and Mr. Krek's frail health.

The Kleins contended their delay was reasonable, particularly given a prior ruling by Wood J. in October 2017 that found their delay reasonable until recently, and subsequent consent timetables.

The court, while expressing "grave concerns" about the slow progress and finding the overall delay inordinate, ultimately denied the motion to dismiss.

This was based on the principle from Stokker v. Storoschuk that where delay has been addressed in a prior court order, only subsequent delay requires explanation.

The court found the delay since Wood J.'s order (17 months) was not inordinate or unexcused, but imposed a peremptory "last chance" timetable for the Kleins to advance the action.

The defendant lawyer, John McGarrity, brought a motion for summary judgment to dismiss a solicitor's negligence claim brought by the plaintiffs, Donald Jesse James and Elsie Maria James.

The plaintiffs alleged that McGarrity failed to properly advise them regarding an agreement to add their daughter, Janice James, to the title of their farm property, which included a non-alienation clause preventing them from selling the property.

The court dismissed the summary judgment motion, finding that the solicitor's negligence claim was inextricably tied to the main action to set aside the agreement and that there was a genuine issue requiring a trial, particularly concerning the plaintiffs' understanding of the agreement and potential undue influence from their daughter.