Sean Dewart

The moving party brought a motion pursuant to Rule 59.06 to set aside a previous order of the Court of Appeal.

The court found the motion had no merit, declined to grant an oral hearing, and dismissed the motion.

The court also ordered that the moving party may not file any further documents or communicate with court staff regarding the appeal.

The appellants appealed a judgment enforcing a mortgage but abandoned any challenge to the mortgage's validity.

The appeal was confined to whether approximately $315,000 had been shown to have been advanced by the respondent and whether those funds were advanced under the mortgage.

The court held there was no requirement in the circumstances to prove the source of the funds and found the evidentiary record, including the appellant's own affidavit and cross-examination, demonstrated acceptance that the funds were advanced under the mortgage.

The appeal was dismissed with fixed costs to the respondent.

The plaintiff sued his former family lawyer and the lawyer’s firm for negligence arising from advice and drafting of a separation agreement that waived spousal support.

The plaintiff argued that the agreement was vulnerable to challenge and that counsel failed to adequately advise him of the risks and should have ceased acting once the agreement was attacked in subsequent litigation.

The court held that the lawyer met the heightened standard of care applicable to a family law specialist, having properly explained the risks and drafted a robust spousal support waiver.

The court also found no breach in continuing the retainer and concluded that causation and damages were not established, including under a lost‑chance analysis.

The action was dismissed.

The defendants, DaimlerChrysler Services Canada Inc. and Daimler Chrysler Financial Services Canada Inc., brought four motions for summary judgment in four related actions arising from a fatal motor vehicle accident.

They argued the actions against them were statute-barred because they were commenced outside the applicable limitation periods under the Limitations Act, 2002 and the Trustee Act.

The plaintiffs had initially sued the driver as the owner based on a police accident report, only discovering later that DaimlerChrysler was the true owner.

The court dismissed the motions for summary judgment, finding that the plaintiffs exercised reasonable diligence in relying on the police report and the driver's statement of defence admitting ownership.

For the Trustee Act claims, the court found special circumstances existed to allow the claims to proceed despite the expiration of the limitation period, noting the lack of prejudice to DaimlerChrysler.

The appellant and his counsel failed to appear for the appeal hearing due to health problems and Law Society difficulties, respectively.

An agent appeared to request an adjournment.

The Court of Appeal granted the adjournment on terms, directing a list judge to set a new hearing date within two weeks, and reserved the costs of the day to the panel hearing the appeal.

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.