Sean Dewart

The appellants appealed an order of the motion judge who refused leave to amend their statement of defence and counterclaim by striking certain defences and counterclaims.

The Court of Appeal found that the motion judge failed to provide explicit reasons for denying leave to amend and that leave should only be denied in the clearest of cases.

The court allowed the appeal and varied the order to grant leave to amend.

The Attorney General brought a motion to quash summonses issued by defendant Michael G. Engel to two Crown attorneys, John McMahon and Paul Amenta, for examination under Rule 39.03 of the Rules of Civil Procedure.

Engel sought to examine them as part of his response to the Attorney General's summary judgment motion to dismiss Engel's crossclaim for contribution and indemnity, which alleged that Crown attorneys failed to comply with disclosure obligations in the underlying wrongful conviction action.

The court found that Engel demonstrated a reasonable evidentiary basis that the Crown attorneys could provide relevant evidence on several specific disclosure topics and that the proposed examinations would not constitute an abuse of process.

The motion to quash was dismissed, allowing examinations on four of the five identified topics.

The plaintiff, Bob Kinnear, on behalf of Local 113 of the Amalgamated Transit Union, sought an interlocutory injunction to prevent the defendant, Lawrence J. Hanley, representing the Amalgamated Transit Union (International), from imposing a trusteeship over Local 113 and from disciplining its members.

The motion also sought to authorize Kinnear to represent Local 113 members and to have Local 113 provide the undertaking as to damages.

The court granted the interlocutory injunction to restrain the trusteeship and ordered Local 113 to provide the undertaking, finding a serious issue to be tried regarding the unconscionability of International's constitution, irreparable harm to democratic rights, and that the balance of convenience favored the plaintiff.

The request for a representative order was deferred.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim for solicitor's negligence, arguing it was statute-barred under the Limitations Act, 2002.

The plaintiff, a lawyer, alleged he discovered the negligence later than the defendant claimed.

The court applied the Hryniak roadmap and found the plaintiff failed to rebut the presumption that the limitation period had expired, as he was aware of the material facts constituting his cause of action by July 2009 at the latest.

The defendant's motion was granted, and the action was dismissed.

An appeal concerning the estate of Paul Penner, who died in March 2013.

A separation agreement required Penner to maintain a $150,000 life insurance policy designating his ex-wife, Pauline McKenny, as beneficiary, with McKenny having a first charge against the estate if the policy lapsed.

Penner failed to pay premiums and the policy lapsed before his death.

McKenny commenced an action more than two years after Penner's death, which would normally be statute-barred under section 38(3) of the Trustee Act.

The Court of Appeal upheld the application judge's finding that the doctrine of fraudulent concealment applied to the estate trustee's conduct, tolling the limitation period until at least September 25, 2013, thereby allowing McKenny's claim to proceed.

The appellant appealed an order staying an action against a court-appointed receiver and refusing leave to sue the receiver.

The appellant argued that the receiver had already consented to the action and that the motion judge erred in finding the test for leave was not met.

The Court of Appeal dismissed the appeal, finding that the prior consent did not encompass the new claim for conversion arising from a subsequent agreement of purchase and sale.

The Court also found no error in the motion judge's discretionary refusal to grant leave, as there was no evidence that the appellant suffered damages.

The appellants appealed the dismissal of their solicitor negligence action, arguing the trial judge failed to consider the solicitor's duty to warn about the consequences of signing a mortgage discharge.

The Court of Appeal dismissed the appeal, noting that at trial, the appellants claimed they never met the solicitor, and their counsel conceded the action would fail if the trial judge found they had indeed signed the documents.

Because the trial judge accepted the solicitor's evidence that the meeting occurred, the duty to warn was not a live issue.

Following a motion to strike where the defendants were largely successful, the court determined the issue of costs.

The defendants had successfully struck the plaintiff's claims of negligent investigation without leave to amend, and malicious prosecution and misfeasance in public office with leave to amend.

Applying the normative approach to costs and the overriding principle of reasonableness, the court ordered the plaintiff to pay the defendants' partial indemnity costs fixed at $5,000.

The defendants brought a motion to strike the plaintiff's amended Statement of Claim, seeking dismissal of the action.

The plaintiff's claim asserted causes of action for negligent investigation, malicious prosecution, and misfeasance in public office, stemming from disciplinary proceedings by the Law Society of Upper Canada that initially revoked his license but were later set aside on appeal.

The court struck the negligent investigation claim without leave to amend, finding it disclosed no reasonable cause of action due to the Law Society's immunity from negligence in good faith performance of its duties.

The claims for malicious prosecution and misfeasance in public office were struck with leave to amend, as they lacked the full particulars of malice and bad faith required by Rule 25.06(8).

The court refused to dismiss the action as an abuse of process, determining that the plaintiff was not attempting to re-litigate issues already decided by the Law Society Appeal Division.

The Law Society appealed a decision of the Appeal Division of the Law Society Tribunal ordering a new hearing and disclosure of files belonging to other lawyers involved in the real estate transactions at issue.

The Law Society argued that s. 49.12 of the Law Society Act prohibited disclosure, the files were irrelevant, and the respondent should have used an O'Connor application.

The Divisional Court dismissed the appeal, finding that s. 49.12 is a confidentiality provision with an exception for conduct proceedings, not a statutory privilege.

The court held that the files were potentially relevant under the Stinchcombe disclosure regime and that the Law Society's investigating and prosecuting arms are not separate entities for disclosure purposes.

The Law Society appealed a decision of the Appeal Division of the Law Society Tribunal ordering a new hearing due to a lack of disclosure.

The respondent lawyer, facing professional misconduct allegations related to real estate fraud, sought disclosure of the files of other lawyers involved in the transactions.

The Divisional Court dismissed the appeal, finding that s. 49.12 of the Law Society Act does not create a statutory privilege barring disclosure, but rather a confidentiality rule with exceptions for conduct proceedings.

The Court affirmed that the Stinchcombe disclosure regime applies, requiring the Law Society to disclose potentially relevant material from other lawyers' files, subject to resolving any solicitor-client privilege claims.

The appellant lawyer appealed a decision of the Law Society Appeal Panel that dismissed his appeal of a penalty requiring him to surrender his licence for participating in mortgage frauds.

On appeal to the Divisional Court, the appellant argued the Appeal Panel should have adjudicated a human rights issue concerning his alleged disability, which was raised for the first time before the Appeal Panel.

The Divisional Court dismissed the appeal, finding the Appeal Panel's decision not to permit the new issue on appeal was reasonable and its reasons were adequate.

The plaintiff moved to amend its statement of claim to add its principal as a plaintiff and the lawyer for the principal's ex-wife as a defendant, alleging conversion of property and actions that devalued the plaintiff's lodge business during a receivership.

The court allowed the amendments relating to conversion, finding they raised a tenable cause of action and were not clearly statute-barred, as discoverability was a triable issue.

However, the court dismissed the proposed amendment claiming damages for the devaluation of the lodge, finding it failed to plead a tenable cause of action for intentional interference with economic relations, conspiracy, or inducing breach of fiduciary duty, but granted leave to move again with fresh amendments.

The appellant lawyer was found by the Law Society Hearing Division to have knowingly assisted in mortgage fraud and his licence was revoked.

The Appeal Division upheld the misconduct finding and the dismissal of a stay motion based on delay, but substituted a two-year suspension for the revocation due to the Law Society's inordinate delay.

The appellant appealed the misconduct and stay decisions, and the Law Society cross-appealed the penalty decision.

The Divisional Court dismissed both the appeal and cross-appeal, finding that the Appeal Division correctly interpreted the law on delay and reasonably concluded that a two-year suspension was appropriate.

The appellant appealed a trial judgment granting the respondent possessory title over a portion of his beachfront property by way of adverse possession or, alternatively, a prescriptive easement.

The Court of Appeal allowed the appeal in part, setting aside the finding of adverse possession because the respondent had not effectively excluded the appellant from the property.

The Court also varied the easement finding, limiting it to non-vehicular traffic on a specific path, as there was no continuous 20-year period of vehicular use.

The trial judge's costs orders, including an order against the appellant's counsel personally, were set aside.

Following a six‑day trial in which the plaintiffs successfully recovered unpaid legal fees and defeated a counterclaim alleging solicitor’s negligence, the court determined the issue of costs.

The plaintiffs had obtained judgment for $90,454.81 and dismissal of the defendant’s counterclaim seeking over $428,000.

The court considered the discretionary framework under s. 131 of the Courts of Justice Act, Rules 49 and 57.01 of the Rules of Civil Procedure, and the effect of a prior Rule 49 offer to settle for $60,000.

Finding the plaintiffs were entirely successful and that their settlement offer was more favourable than the ultimate result, the court awarded partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

Costs were fixed in all‑inclusive amounts for both the main action and the counterclaim.

The plaintiff lawyer and his professional corporation sued a former client for unpaid legal fees.

The client counterclaimed for solicitor's negligence, alleging the lawyer failed to collect settlement funds and mishandled an ex parte Mareva injunction, forcing an improvident settlement.

The court found the lawyer's services were necessary, beneficial, and in accordance with instructions, though it slightly reduced the accounts for excessive time.

The counterclaim was dismissed, as the court found no breach of the standard of care and concluded the client's settlement decision was based on damaging evidence from a co-party, not the lawyer's actions.

The respondents brought a preliminary motion to strike portions of an elector’s application under the Municipal Conflict of Interest Act on the basis that several alleged contraventions were commenced outside the six‑week time limit in s. 9(1).

The court examined the legislative history and jurisprudence interpreting the provision and concluded that s. 9(1) functions as a temporal qualification for applicants rather than a conventional limitation period.

The relevant inquiry focuses on the applicant’s actual or constructive knowledge of the facts giving rise to the alleged contravention, not on what a reasonably diligent person could have discovered from publicly available information.

The court held that the applicant’s uncontradicted evidence established that she commenced the application within six weeks of acquiring the requisite knowledge.

The moving parties failed to prove earlier knowledge that would render the application untimely.

Following dismissal of a negligence action against a lawyer, the successful defendant sought partial indemnity costs of approximately $74,000.

The plaintiffs challenged the quantum, arguing that certain hours were excessive, that some work should have been done by junior counsel, and that an expert report not used at trial should not be compensable.

The court applied the discretionary factors under Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness and reasonableness in light of the issues and expectations of the parties.

While the hourly rates and expert report were found reasonable, some time entries and disbursements were reduced.

The court awarded reduced costs inclusive of disbursements and tax.

The defendants in a lawyer negligence action brought a motion seeking an order that their action be tried simultaneously or consecutively with a related wrongful dismissal action involving overlapping factual and legal issues.

The court considered Rule 6 of the Rules of Civil Procedure and the policy in s.138 of the Courts of Justice Act favouring the avoidance of multiplicity of proceedings.

The judge found substantial commonality of issues, particularly regarding whether alleged professional negligence caused the loss of damages sought in the wrongful dismissal claim.

Separate trials risked duplication of evidence, inconsistent findings, and unnecessary expense.

The court ordered that the two actions be tried together or consecutively, subject to the discretion of the trial judge.