Sean Dewart

The plaintiffs sued the defendant, a land use consulting company, for professional negligence causing pure economic loss.

The defendant third-partied its lawyers and subsequently filed for bankruptcy, staying the action.

The plaintiffs moved to lift the stay under the Bankruptcy and Insolvency Act to access the bankrupt's professional liability insurance.

The third parties opposed, arguing that under Ontario law (Perry v. General Security Insurance), s. 132 of the Insurance Act does not permit direct recovery against an insurer for pure economic loss.

The Registrar granted the motion, lifting the stay to allow the plaintiffs to amend their claim to seek a declaration that the bankrupt holds the insurance policy in trust, thereby utilizing equitable principles to bypass the strictures of s. 132.

The plaintiff commenced an action seeking damages arising from the rescission of a Dealer Agreement, which it alleged was a franchise agreement under the Arthur Wishart Act.

The defendants brought a cross-motion to stay the action, relying on a mandatory arbitration clause in the agreement.

The plaintiff argued the arbitration clause conflicted with an exclusive jurisdiction clause and that the summary judgment exception under s. 7(2) of the Arbitration Act applied.

The court found the arbitration clause applied and that the plaintiff failed to meet the heavy burden of showing this was a clear case for summary judgment.

The action was stayed pending the arbitrator's determination of jurisdiction.

The applicants sought judicial review of decisions by the Ontario Labour Relations Board dismissing their application.

They argued that the Vice-Chair should have recused himself because he had previously acted as a lawyer for one of the applicants in a related matter.

The Divisional Court found that the Vice-Chair misunderstood the test for conflict of interest and the appearance of bias, as set out in Macdonald Estate v. Martin.

The court quashed the Board's decisions and remitted the matter for a new hearing before a differently constituted panel.

The applicant sought judicial review of an arbitrator's interim award denying her independent standing in a grievance arbitration concerning her alleged breach of a settlement agreement's non-disclosure provision.

The Divisional Court dismissed the application, finding the arbitrator reasonably concluded that the union had exclusive carriage of the matter and that any complaints regarding the union's representation should be directed to the Ontario Labour Relations Board.

The Court also held that the application for judicial review was premature.

The applicant sought judicial review of an arbitrator's decision denying her standing.

The Divisional Court dismissed the application, finding the arbitrator's decision on standing was both reasonable and correct.

The court further held that without standing, the applicant could not raise the issue of bias.

The court noted prematurity might also be a ground for dismissal but reserved definitive findings for written reasons to follow.

Following the dismissal of the applicant's motion for leave and judicial review of a Law Society Hearing Panel decision, the court determined costs.

The respondent sought partial indemnity costs of $7,669.40.

The applicant argued for no costs, claiming the issue was novel and blaming the respondent for not agreeing to an adjournment.

The court rejected the applicant's arguments, noting he chose the venue and his own costs outline exceeded the respondent's claim.

The court awarded the successful respondent costs fixed at $5,000 inclusive of disbursements and HST.

The plaintiff appealed a Master's decision refusing leave to vacate a trial record after the action had been set down for trial.

The trial record had been filed to avoid dismissal following a status notice, but doing so prevented further discovery under rule 48.04(1) of the Rules of Civil Procedure.

The Master held that leave could only be granted if there was a substantial or unexpected change in circumstances or if substantive rights were affected.

The court held that the Master fettered his discretion by applying the test too narrowly.

Even without a substantial change in circumstances, leave may be granted where the interests of justice require it, particularly where the plaintiff would otherwise suffer significant prejudice in preparing for trial.

The plaintiff brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking orders that her former solicitors personally repay legal fees and indemnify her for costs incurred following the dismissal of her action for delay.

The lawyers admitted responsibility for significant delays that contributed to the dismissal.

The court considered the principles governing personal costs orders against lawyers, emphasizing that such orders must be made sparingly and only in clear cases.

Given the clear admissions of delay and the direct connection between that delay and the costs consequences faced by the plaintiff, the court exercised its discretion to require the lawyers to pay the defendants’ costs of the dismissed action and to reimburse the plaintiff for certain costs awards.

The court declined to order repayment of legal fees, leaving issues of negligence and causation to be determined in a separate solicitor’s negligence action.

The applicant, a solicitor facing professional misconduct proceedings, sought leave under s. 6(2) of the Judicial Review Procedure Act to have his application for judicial review of a Law Society hearing panel's venue decision heard by the Superior Court of Justice rather than the Divisional Court.

The applicant sought to challenge the panel's refusal to change the hearing venue from Toronto to Ottawa.

The court dismissed the application, finding that the applicant failed to establish urgency or that the delay in proceeding to the Divisional Court would result in a failure of justice.

The court noted that the venue decision was interlocutory and the applicant's evidentiary record before the panel was deficient.

The plaintiff commenced an intended class proceeding against the Crown arising from a criminal proceeding where his Charter rights were infringed due to an incompetent interpreter.

The Crown brought a motion to dismiss the action on the basis that the plaintiff failed to provide the requisite 60 days' written notice under s. 7(1) of the Proceedings Against the Crown Act.

The plaintiff argued that a release signed in relation to a costs settlement in the criminal matter, along with the application record and factum, constituted sufficient notice.

The court held that the documents did not provide sufficient particulars to identify the occasion out of which the civil claim arose, leaving the Crown to guess its potential liability.

The action was dismissed as a nullity.

In ongoing Companies’ Creditors Arrangement Act proceedings, the applicants sought advice and directions regarding the application of a directors’ and officers’ liability insurance policy issued by the insurer.

The dispute concerned whether a US$10 million retention applied to defence costs incurred by executives facing claims arising from alleged pre‑filing misconduct.

The applicants argued that the CCAA stay prevented the company from indemnifying the executives, thereby triggering the policy’s non‑indemnifiable loss provisions and eliminating the retention requirement.

The court held that the indemnity obligation was a pre‑filing obligation and that the stay prevented payment, rendering the loss non‑indemnifiable within the meaning of the policy.

As a result, the insurer was required to respond to the executives’ losses without reference to the retention.

The plaintiff brought a motion under Rule 48.04(1) of the Rules of Civil Procedure seeking to vacate a trial record and obtain leave to continue a discovery-related production motion after the action had been set down for trial.

The plaintiff acknowledged that counsel had inadvertently set the action down for trial in response to a status notice without considering the consequences of Rule 48.04(1).

The court held that discovery motions are routine interlocutory matters that do not affect substantive rights and therefore require a substantial or unexpected change in circumstances before leave may be granted.

As no such change in circumstances existed, the court declined to vacate the trial record or permit the continuation of discovery.

The motion was dismissed and costs were awarded to the defendants.

The appellant, an Ontario lawyer, appealed a summary judgment recognizing and enforcing an Italian court judgment against him for professional misconduct in a failed joint venture.

The Court of Appeal applied the Van Breda test, finding that the tort was committed in Italy, which established a presumptive real and substantial connection.

The court also dismissed the appellant's arguments regarding a denial of natural justice and fraud on the foreign court, noting he had notice of the allegations but chose not to participate in the Italian proceedings.

The appeal was dismissed.

Following an earlier ruling declaring the respondent a vexatious litigant, multiple applicants sought costs of the proceeding.

The court found that the respondent’s conduct throughout the litigation, including unsupported allegations of misconduct, disregard of procedural orders, and repeated technical objections, justified an award of substantial indemnity costs.

The court reviewed each applicant’s bill of costs and assessed overall reasonableness, reducing or excluding amounts relating to deferred motions for security for costs and instances of over‑lawyering.

Several cost awards were fixed globally rather than assessed strictly by docketed hours.

Substantial indemnity costs were awarded to multiple applicant groups in varying amounts.

The applicants, comprising 27 parties adverse to the respondent in 14 different actions, brought an application to declare the respondent a vexatious litigant under section 140 of the Courts of Justice Act.

The respondent had a history of commencing multiple actions against his former lawyers and others, alleging widespread conspiracies and fraud after losing previous litigation.

The court found that the respondent persistently instituted vexatious proceedings without reasonable grounds, sought to relitigate previously decided issues, and failed to pay outstanding costs orders.

The court granted the application, prohibiting the respondent and his corporations from instituting or continuing any proceedings without prior leave of the court.

The applicant lawyer, facing a discipline hearing regarding alleged participation in mortgage fraud, sought a stay of the hearing pending his application for judicial review of a Law Society Hearing Panel's refusal to order further disclosure.

The Divisional Court dismissed the motion for a stay, finding that the judicial review application was premature as the tribunal's refusal to order production of documents did not go to its jurisdiction.

The court also found that the applicant would not suffer irreparable harm and that the balance of convenience favoured not staying the discipline proceedings to avoid fragmenting the administrative process.

The appellant appealed the dismissal of her claim on a Rule 21 motion, arguing the motion judge failed to consider whether the limitation period was tolled under s. 7 of the Limitations Act due to her mental and psychological condition.

The Court of Appeal allowed the appeal, finding that based on the statement of claim, it was not plain and obvious that the claim was statute-barred.

The order of the motion judge was set aside and the defendant's Rule 21 motion was dismissed.

The appellant appealed the dismissal of his action against the police and his former wife's lawyer for negligent investigation and conspiracy to bring false criminal charges.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's findings of fact and credibility.

The court also upheld the trial judge's refusal to draw an adverse inference for the failure to call the former wife as a witness.

Substantial indemnity costs were awarded against the appellant due to his persistence in making serious, unfounded allegations against a lawyer.

The appellant appealed a summary judgment dismissing its claims against the respondents for allegedly agreeing to engage in unlawful conduct.

The Court of Appeal dismissed the appeal, finding the motion judge correctly concluded the allegations were based entirely on assumptions, speculation, and embellishment.

Leave to appeal the motion judge's costs award was denied, and the respondents were awarded costs of the appeal on a substantial indemnity scale due to the appeal being entirely meritless.

The appellant chiropractor appealed a decision of the Discipline Committee finding him guilty of professional misconduct for failing to attend a mandatory Record Keeping Workshop, and the resulting 60-day suspension.

The appellant argued the Committee lacked jurisdiction because it did not require proof of a formal Council resolution making the workshop mandatory.

The Divisional Court dismissed the appeal, finding that official College notices were sufficient evidence that attendance was mandatory, especially since the appellant never opened his mail from the College.

The penalty was upheld as reasonable given the appellant's history of ignoring College communications.