Sean Dewart

Supplementary reasons to an appeal of an order striking the appellant's fresh as amended statement of claim.

The respondents requested the court re-open the appeal and withdraw, alter, or modify its decision, arguing the court misapprehended the timing of the demand for particulars, the history of the bankruptcy proceeding, and conflated oral submissions with pleading content.

The court rejected the second and third arguments and, while acknowledging the respondents' point regarding the timing of the demand for particulars, declined to re-open the appeal as it was not in the interests of justice and the result would have been the same.

The appellant appealed the motion judge's order striking his fresh as amended statement of claim without leave to amend and dismissing his action for malicious prosecution and misfeasance in public office against the Law Society of Ontario and four individuals involved in investigations and proceedings concerning the appellant over 15 years.

The motion judge found the appellant had failed to provide sufficient particulars of improper purpose or ulterior motive as required by the Rules of Civil Procedure.

The Court of Appeal allowed the appeal in part, finding the appellant had sufficiently pleaded the elements of both torts through his pleadings and response to the demand for particulars, except as to one respondent against whom no particulars were provided.

The court dismissed the appellant's motion to admit fresh evidence and vacated the costs order, awarding the appellant partial costs of the appeal.

The defendant Wilford brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The corporate plaintiff argued it was impecunious and that the action was primarily driven by its principal, who was also a plaintiff.

The Master found that the corporate plaintiff had insufficient assets in Ontario and that its claims were weak.

Applying a holistic analysis, the Master concluded it was just to order security for costs to protect the defendant, fixing the amount at $12,500 up to the end of discoveries.

The co-respondents, Louis Montello and Las Princesas Corp., brought a motion under Rule 25(19)(d) of the Family Law Rules to set aside specific paragraphs of a final order obtained by Monique Abitbol without notice.

The impugned paragraphs disentitled Montello and Las Princesas from further participation and declared them to be holding the "Golden Beach" property in trust for Alberto Benarroch.

Applying the factors from Mountain View Farms Ltd. v. McQueen, the court found that while there was no compelling excuse for the co-respondents' default in filing an Answer, they had an arguable defense on the merits.

The court determined that allowing the ex-parte declaratory relief to stand would cause disproportionate prejudice to the co-respondents and undermine the integrity of justice.

The motion was granted, setting aside the contested paragraphs, with terms including payment of prior costs and an expedited timetable for the proceeding.

KSP Holdings Inc. moved for disclosure of documents referenced in an affidavit by plaintiff's counsel, Marc Kestenberg, filed in response to KSP's motion for a stay.

KSP argued the documents were required under Rule 30.04(2), were relevant and not privileged, or that privilege had been waived.

The plaintiff claimed irrelevance and settlement privilege.

The court found the documents relevant to determining the true date of settlement between the plaintiff and a co-defendant, Secure Capital Advisors Inc., and that any settlement privilege was waived by extensive reference to the documents and negotiation details in the affidavit.

The court also held that Rule 30.04(2) mandates production of documents referred to in an affidavit, regardless of privilege.

The motion for disclosure was granted, and KSP was awarded costs.

The plaintiff, Drake Holdings Ltd., brought a motion seeking a declaration that four inadvertently disclosed documents were solicitor-client privileged and an order removing the defendant's counsel, Lerners LLP.

The defendant, Chubb Insurance Company of Canada, argued that the documents were not privileged, or that privilege was waived, and opposed counsel's removal.

The court found the documents were privileged and that privilege was not waived or lost.

While acknowledging a presumption of prejudice, the court determined that remedies short of removing counsel were sufficient to protect the privilege, including orders for the return/deletion of documents, an undertaking from counsel not to relay information, and a prohibition on counsel conducting examinations of the plaintiff's witnesses.

The applicants sold their company to the respondents, with $1 million held in escrow to secure indemnity claims.

The agreement required the applicants to object to any claims within 30 days, time being of the essence.

The applicants' lawyer inadvertently missed the deadline by seven days due to a medical emergency and a colleague's serious injury.

The applicants brought an application for relief from forfeiture under s. 98 of the Courts of Justice Act.

The court held that relief from forfeiture was available even without a strict breach of contract, and granted the relief because the applicants acted reasonably, the breach was minor, and the $1 million forfeiture was disproportionate to the minimal prejudice suffered by the respondents.

The respondents' request for a reciprocal time extension was denied.

The plaintiff commenced an action and brought a motion for an interim injunction to prevent the defendant from imposing a trusteeship on a local union.

The plaintiff subsequently abandoned the motion and the litigation after the trusteeship was imposed and she joined a rival union.

The defendant sought costs of the abandoned motion pursuant to Rule 37.09(3).

The court found no good reason to depart from the general rule that a responding party is entitled to costs of an abandoned motion, and awarded the defendant $30,000 in costs on a partial indemnity scale.

The appellant law firm charged a "results achieved fee" in a family law matter in addition to hourly rates and daily counsel fees.

The respondent client was awarded sole custody of his child, half the proceeds of the matrimonial home, and costs.

The law firm unilaterally deducted the results achieved fee from trust funds.

The respondent objected, and the application judge found the fee constituted a prohibited contingency fee agreement under the Solicitors Act.

The law firm appealed, arguing the fee was a permissible bonus because the client remained liable for fees regardless of outcome and the fee was tied to success at trial rather than a specific monetary result.

The Court of Appeal dismissed the appeal, holding that any part of a lawyer's compensation dependent on successful disposition of a matter constitutes a contingency fee agreement prohibited in family law matters.

The appellant appealed from a motion judge's order dismissing its motion for leave to amend the statement of claim to add a lawyer as a party defendant.

The motion judge found that the claim could not succeed on the merits and was statute-barred.

The Court of Appeal upheld the dismissal on the basis that the claim was statute-barred, as the appellant had discovered or should have discovered its potential claim by 2014, more than two years before the motion to amend was brought in October 2016.

An appeal concerning the failure to disclose immediately litigation agreements between a plaintiff (subrogated insurer) and a defendant that converted their adversarial relationship into a cooperative one.

The plaintiff and defendant entered into two agreements (2011 and 2016) whereby the defendant would defend the action and prosecute a third-party claim funded by the plaintiff, and subsequently the plaintiff assigned all its rights in the action to itself.

These agreements were not disclosed immediately but rather piecemeal throughout 2016.

The motion judge found the agreements should have been disclosed but refused to stay the action, finding no prejudice.

The appellate court reversed, holding that failure to immediately disclose agreements that change the litigation landscape constitutes abuse of process requiring a stay of the non-disclosing party's claim as a matter of principle.

In a civil procedure appeal, the appellants challenged orders permitting amendment of a statement of claim through a representation order after expiry of a limitation period.

The central issue was whether the order improperly added parties or merely corrected the naming of the legal entity represented by previously named individuals.

A majority held the request was properly treated as correction of a misnamed party, with members having notice before the limitation deadline and no demonstrated prejudice after extensive participation in the litigation.

The appeal was dismissed, with one dissenting judge who would have allowed it.

The defendants brought a motion under Rule 21 to strike the plaintiff's amended statement of claim, which alleged malicious prosecution and misfeasance in public office arising from Law Society disciplinary proceedings.

The court found that the amended claim failed to provide the necessary particulars of improper purpose or ulterior motive, repeating the same bald and conclusory statements that led to a previous version of the claim being struck.

The court granted the motion, struck the amended claim without leave to amend, and dismissed the action with costs.

Following the dismissal of the appellants' appeal from an Ontario Securities Commission decision finding them guilty of securities fraud, the Commission and the intervenors sought costs.

The Commission sought $40,000, which the court awarded in full on a partial indemnity basis.

The intervenors, who were the appellants' former counsel and intervened to defend against allegations of ineffective assistance, sought over $53,000 on a substantial indemnity basis.

The court held that the intervenors were entitled to costs as parties to the appeal, but reduced the scale to partial indemnity and fixed their costs at $20,000.

Several trade unions and the Canadian Labour Congress brought motions for leave to intervene as added parties or as friends of the court in an action challenging the constitution of the Amalgamated Transit Union.

The moving parties argued they had an interest in the proceeding because their own constitutions contained similar provisions and they could be adversely affected by the precedent.

The court dismissed the motions, finding that an interest based solely on the potential precedential effect of a decision is insufficient for intervention as an added party under Rule 13.01.

The court also denied leave to intervene as friends of the court under Rule 13.02, concluding that the proposed interveners' submissions would largely duplicate the arguments of the defendant union and would not provide a materially different perspective.

Motion to extend time to seek leave to appeal from a Superior Court decision confirming an arbitral award.

The moving parties' counsel missed the 15-day deadline by 7 days due to mistakenly believing the deadline was 30 days.

The respondent conceded the delay was caused by counsel error with no prejudice, but argued the proposed appeal lacked merit.

The court found arguable merit in the procedural fairness issue regarding the arbitrator's refusal to arbitrate disputes involving one of the moving parties without inviting submissions.

The motion was allowed, granting the moving parties 10 days to file a motion for leave to appeal, with costs fixed in their favour.

The appellant, a police superintendent acting as Incident Commander during the 2010 G20 Summit, appealed convictions for professional misconduct relating to the mass arrests of protestors at the Novotel Hotel and the intersection of Queen and Spadina.

The Hearing Officer found the arrests were unlawful and constituted an unnecessary exercise of authority, and that the appellant committed discreditable conduct by leaving detainees in inclement weather.

The Ontario Civilian Police Commission dismissed the conviction appeals, finding the Hearing Officer correctly applied the law regarding reasonable and probable grounds and the ancillary powers doctrine.

On the cross-appeals regarding penalty, the Commission found the original penalties (a reprimand and forfeiture of 10 days off) were unreasonable given the severity of the Charter breaches.

The Commission varied the penalties to the forfeiture of 20 days off for each of the two unlawful arrest convictions, to be served consecutively with the 20 days off forfeited for discreditable conduct.

In an addendum to a previous summary judgment decision, the plaintiff sought clarification on whether its professional negligence claim against the defendant lawyer and law firm was dismissed, and whether it was entitled to a $60,000 purchase price.

The court confirmed that the professional negligence claim was dismissed because it was pleaded as equivalent to the failed breach of fiduciary duty claim.

The court also held that the plaintiff was not entitled to the purchase price because the underlying contract had been abandoned and repudiated by both parties.

The plaintiff brought a motion for leave to amend its statement of claim to add a lawyer as a defendant, alleging the lawyer acted for it in a 2007 co-ownership conversion transaction and breached his duties.

The lawyer and the mortgagee he represented opposed the motion.

The court dismissed the motion, finding the proposed claim was legally untenable because the lawyer solely represented the mortgagee and owed no duty of care to the plaintiff.

Furthermore, the claim was statute-barred under the Limitations Act, 2002, as the plaintiff had imputed knowledge of the potential claim in 2007 and actual knowledge by June 2014, well beyond the two-year limitation period.

Geo.

Williamson Fuels Ltd. moved to stay the action, arguing that the plaintiff and H&M Combustion Services Ltd. failed to disclose a litigation agreement for approximately five years.

The court found that the agreement, which involved the plaintiff's insurer funding H&M's defense and third-party claim, altered the adversarial orientation of the lawsuit and should have been disclosed.

However, applying the principle of proportionality, the court determined that a stay of the action against Williamson was not an appropriate remedy, particularly given that the third-party claim itself was a nullity due to H&M's prior dissolution.

The motion to stay was dismissed.