Sean Dewart

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.

The plaintiffs alleged negligence against a lawyer who discharged their mortgages without authorization, claiming they had never met the lawyer or signed discharge authorizations.

The lawyer maintained that the plaintiffs attended his office, produced identification, and executed written authorizations.

The court evaluated conflicting testimony, contemporaneous documentation, and the lawyer’s standard practice for client identification.

Finding the lawyer’s evidence more credible and supported by photocopies of the plaintiffs’ identification and witnessed signatures, the court concluded that the plaintiffs had likely attended and authorized the discharges or, alternatively, that the lawyer had exercised reasonable care consistent with the applicable standard.

The plaintiffs also failed to prove the alleged outstanding mortgage advances.

The negligence claim was dismissed.

The appellant sought to add the respondents as defendants to an action arising from a 2009 oil spill.

The motion judge dismissed the motion, finding it was statute-barred.

On appeal, the appellant argued she only discovered the specific conduct giving rise to the claim during a 2013 examination for discovery.

The Court of Appeal dismissed the appeal, noting that the appellant's insurer had put the respondents on notice of a potential claim related to renovations as early as July 2010.

Therefore, the limitation period began to run no later than July 2010, and the 2014 motion to add them as defendants was statute-barred.

The appellant sought to appeal a judgment disposing of claims under the Land Titles Act to the Court of Appeal.

The Court of Appeal determined it lacked jurisdiction, as section 27 of the Land Titles Act directs such appeals to the Divisional Court.

The court transferred the appeal and the related motion for leave to appeal costs to the Divisional Court pursuant to section 110 of the Courts of Justice Act, with a request to expedite the hearing.

On three motions for security for costs brought by nine defendants, the court considered Rule 56.01(1)(a), (c), and (d) of the Rules of Civil Procedure.

Where multiple plaintiffs advanced both joint and several claims, the court applied the joint-versus-several claim analysis and held that security could not be ordered for joint claims advanced with an Ontario-resident plaintiff, but could be ordered for claims advanced only by non-resident plaintiffs.

The unpaid prior costs order did not assist the moving defendants because only parties holding the unpaid costs order could rely on that clause, and those parties were no longer defending the action.

The estate plaintiff, as a nominal plaintiff, was also ordered to post security because there was good reason to believe the estate had insufficient assets in Ontario.

Security was ordered in stages and costs of the motions were awarded to three groups of moving defendants.

The appellants purchased a house and later discovered structural problems.

They sued the vendors and others, and later sought to add the designers as defendants.

The motion judge granted summary judgment dismissing the claim against the designers as statute-barred, finding the appellants ought to have known of the dangerous defects earlier.

The Court of Appeal allowed the appeal and set aside the summary judgment, holding that the motion judge erred in law by ignoring uncontested sworn evidence from the appellants' former counsel regarding when the dangerous nature of the defects was discovered.

The respondents, former employees and officers of a union local, brought an application before the Ontario Labour Relations Board alleging unfair labour practices.

They requested the vice-chair recuse himself because he had previously acted for one of the respondents in an employment dispute.

The vice-chair declined and dismissed the application for serving no labour relations purpose.

The Divisional Court quashed the decisions, finding a conflict of interest.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by applying the test for a lawyer's conflict of interest rather than the test for reasonable apprehension of bias by an adjudicator.

The Court found the presumption of impartiality was not rebutted and reinstated the vice-chair's decisions.

The applicant sought judicial review of an arbitration award that ordered her to repay a $209,912 lump sum to her former employer.

The arbitrator found that the applicant breached the confidentiality provision of a grievance settlement agreement by referencing the payment in a self-published book.

The Divisional Court dismissed the application, finding that the applicant lacked standing because the union had not failed in its duty of fair representation.

Furthermore, the court held that the arbitrator reasonably concluded the repayment provision was a valid forfeiture clause, not an unconscionable penalty, and that the applicant had clearly breached the confidentiality terms.

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division, which upheld a Hearing Panel's finding of professional misconduct and the revocation of his license.

The appellant had acted for investors in 14 real estate transactions involving a fraudulent scheme to mislead institutional lenders into financing the entire purchase price of homes.

The Divisional Court found the Hearing Panel's conclusion that the appellant knowingly assisted in the fraud to be reasonable, noting his reverse-engineering of Statements of Adjustments.

The court also upheld the penalty of revocation, affirming that absent exceptional circumstances, revocation is the presumptive penalty for knowing participation in mortgage fraud to maintain public confidence in the legal profession.

The appellant, a real estate lawyer, appealed a decision of the Law Society Appeal Panel which ordered a new hearing on allegations of professional misconduct related to his participation in real estate flip transactions.

The original hearing panel had dismissed the fraud allegations, finding a lack of direct evidence from the lenders or participants.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the hearing panel erred in law by failing to consider circumstantial evidence and by incorrectly requiring proof of actual economic loss rather than a mere risk of prejudice to establish fraud.

The appellant brought a motion to vary the order of the motion judge to grant a stay of the Tribunal's decision pending appeal.

The Divisional Court found that the motion judge offered no reasons regarding irreparable harm and thus his decision was not entitled to deference.

Applying the RJR-MacDonald test, the Court found a serious issue to be tried and that the balance of convenience favoured a stay, noting the member had practiced without restriction since 2005.

The motion was granted and a stay was ordered until the appeal hearing date.

Following settlement of a negligence action concerning damage at a nuclear generating station, the defendant brought a third party claim against its lawyers alleging professional negligence in drafting and advising on contractual arrangements and settlement strategy.

The lawyers in turn issued a fourth party claim against the original defendants and the plaintiff seeking contribution and indemnity under the Negligence Act.

The court held that the third party claim limited recovery to the lawyers’ proportionate degree of fault, meaning they could never be liable for damages attributable to others.

Because contribution rights arise only where a party may be required to pay more than its proportionate share of the plaintiff’s damages, the fourth party claim disclosed no reasonable cause of action.

The claim was struck under rule 21.01(1)(b) of the Rules of Civil Procedure.

The appellants, nieces of the deceased and remainder beneficiaries of his estate, appealed a decision declaring the Constantine Gicas Family Trust validly created.

They argued the trust lacked the three certainties and was not properly constituted.

The Court of Appeal upheld the application judge's finding that the trust was validly declared and constituted, and that specific shares were properly transferred to it.

However, the Court granted leave to appeal the costs award, finding that because the litigation was reasonably necessary to administer the estate due to the testator's conduct, costs should be paid out of the estate rather than by the appellants personally.

The appellants (Daimler Chrysler) appealed a summary judgment decision that dismissed their motion to have the actions against them declared statute-barred.

The plaintiffs had relied on a police accident report that incorrectly identified the driver as the owner of the vehicle.

The true owner, Daimler Chrysler, was discovered during examinations for discovery, more than two years after the accident.

The motion judge found that the plaintiffs exercised reasonable diligence and the discoverability principle applied for the Limitations Act claims.

For the Trustee Act claims, the motion judge found special circumstances and no prejudice to the appellants.

The Court of Appeal upheld the motion judge's decision, finding no error in her application of the discoverability principle or the special circumstances test.

The moving party sought an adjournment of his motion to set aside consent orders previously made in complex estate litigation.

The respondents opposed the adjournment, arguing prejudice and delay in the sale of an estate property.

The court refused to adjourn the portions of the motion relating to the dismissal of claims against former counsel and the removal of the Estate Trustee During Litigation, finding no merit to those claims and emphasizing the need to enforce court orders.

The court granted an adjournment for the remaining issues regarding the consent orders but ordered the moving party to personally pay the ongoing expenses of the estate property and awarded costs of $54,490 to the respondents on a partial indemnity basis.

Following a trial concerning a possessory land claim, the successful party sought costs and the court initiated a Rule 57.07 inquiry regarding whether the opposing party’s lawyer should personally bear responsibility for wasted costs.

The court first rejected a recusal motion alleging reasonable apprehension of bias, applying the test from Wewaykum and concluding that prior findings and procedural steps did not create a reasonable apprehension of bias.

On the merits, the court applied the two‑step framework from Galganov v. Russell (Township) to determine whether the lawyer caused unnecessary costs and whether a personal costs order was warranted.

The court found the lawyer knowingly or negligently presented an expert witness whose lack of impartiality was evident, resulting in significant wasted trial time.

Exercising its discretion, the court ordered the lawyer to reimburse the client for 20% of the $490,000 costs award and to pay additional costs for the Rule 57.07 hearing.

The appellant lawyer appealed a decision of the Law Society Appeal Panel, which had overturned a Hearing Panel's finding that he did not commit fraud in certain real estate transactions.

The appellant argued the Appeal Panel failed to respect the Hearing Panel's credibility finding that he had an honest but mistaken belief that the lenders knew the actual structure of the transactions.

The Divisional Court dismissed the appeal, agreeing with the Appeal Panel that the Hearing Panel's credibility findings were tainted by its flawed legal analysis of fraud, and upholding the referral to a new Hearing Panel.