Sean F. Dunphy

A law firm sought to collect $5,458.44 in unpaid fees from a former client.

After facing a three-year delay for an assessment hearing under the Solicitors Act, the firm moved for leave to stay the assessment and proceed in Small Claims Court.

The court interpreted section 23 of the Solicitors Act, concluding that it only bars actions on alternative fee arrangements (such as contingency or block fees) and does not prevent a solicitor from suing on a standard hourly retainer agreement.

The court granted the firm leave to bring an action in Small Claims Court.

The plaintiff, a third mortgagee, brought a motion for summary judgment against the mortgagor and two guarantors for possession and payment of a mortgage debt.

The defendants largely failed to respond.

The court dismissed the motion and the underlying claim without prejudice, finding that the statement of claim was entirely deficient and bore little resemblance to the confusing evidence presented.

The court noted significant issues with the claim, including the demand for unenforceable penalty interest and the reliance on a collateral mortgage that was not signed by the defendants or properly pleaded.

The plaintiff was granted leave to commence a fresh proceeding with a properly drafted statement of claim.

The appellants (defendants) appealed a Master's decision that set aside a registrar's order dismissing the action for delay.

The Superior Court found that the Master erred in reversing the onus of proof regarding prejudice, which lies with the plaintiff to demonstrate a lack thereof.

The Master also failed to give adequate weight to the principle of finality.

The court emphasized that the plaintiff failed to provide a satisfactory explanation for significant delays and did not demonstrate a lack of prejudice to the defendants.

The appeal was allowed, and the registrar's dismissal order was restored.

The defendants, a consortium of insurers, brought a motion to clarify TD Bank's discovery obligations regarding documents subject to solicitor-client, litigation, and settlement/mediation privilege.

TD Bank was seeking indemnity under fidelity policies for amounts paid to settle 19 underlying lawsuits related to a Ponzi scheme.

The court ruled that TD Bank had not implicitly waived solicitor-client privilege through its pleadings.

It also found that litigation privilege for documents created for the underlying litigation was not lost upon settlement, given the close connection to the current coverage dispute.

However, the court determined that TD Bank could not assert settlement privilege over documents related to the underlying settlements, as these were crucial for the insurers to assess the reasonableness and allocation of damages for coverage purposes.

The applicants appealed the Chief Building Official's decision to refuse a building permit for an already constructed 21-room building, which they labelled as a "single family dwelling" but was designed and previously operated as a hotel.

The court dismissed the appeal, finding that the CBO was entitled to look beyond the label and consider the building's design, layout, and prior use to determine its intended purpose.

The CBO's conclusion that the building contravened applicable zoning by-laws for a single-family dwelling was deemed reasonable and correct.

The plaintiff tenant sought a declaration that a restrictive clause in its commercial lease prevented the landlord from leasing space in the plaza to a Tim Hortons franchise.

The court was tasked with interpreting the restrictive clause, specifically whether it should be construed statically (comparing to the tenant's business in 1991 when the clause was introduced) or dynamically (comparing to the current tenant's business).

The court adopted a static interpretation, finding that the proposed Tim Hortons business was not of a similar nature to the original "Corner Restaurant" in terms of menu and eat-in seating facilities.

Even under a dynamic interpretation, Tim Hortons was found not to be similar to the current "Wimpy's" restaurant.

The motion for the declaration was dismissed, and the defendant was awarded costs.

This is a costs endorsement following the dismissal of an interpleader application.

The interpleader application was necessitated by the respondent Mr. Wickham's late and unsubstantiated demand that an equalization payment be held in trust, despite having been previously denied similar relief.

Mr. Wickham failed to take timely steps to establish a proprietary claim or file responding materials.

The court found Mr. Wickham's conduct to be cavalier and ordered him to pay the applicants' costs of $3,253.74 and the respondent Mr. Hamdy's costs of $10,465.95, both on a partial indemnity basis and payable forthwith.

This costs endorsement followed a five-day jury trial where the jury found Mr. Kane solely responsible for a motor vehicle accident, absolving the Estate of Ellen Browne of any contributory negligence.

State Farm, as statutory third party, stood in the plaintiffs' shoes.

The successful defendants sought costs on a partial indemnity scale.

The court found the defendants entitled to costs on a partial indemnity basis, rejecting State Farm's suggestion that both insurers bear their own costs.

The court reduced the claimed disbursements for a forensic engineer whose evidence was largely disregarded and also reduced the claimed legal fees, finding the aggregate time dockets excessive given the case's complexity.

The final costs were fixed at $73,051.81, payable by State Farm.

During a negligence trial against their former lawyers, the plaintiffs attempted to lead evidence on claims not explicitly pleaded in their statement of claim, specifically concerning property at the "Holdway mill" and the promptness of pursuing those claims.

The defendants objected on grounds of relevance.

The court ruled that the statement of claim, as pleaded, did not encompass these additional claims and therefore precluded the plaintiffs from exploring these issues without an amendment to their pleadings.

The court emphasized the fundamental principle that a litigant must have notice of the case against them and clarified that raising an issue in a defence does not elevate it to a claim.

The applicant sought to invalidate or correct a $1.2 million gift of a home made to her parish priest in trust for his religious order, alleging mistake and, by amendment, undue influence.

Despite the parties' joint request for a decision on the voluminous affidavit evidence, the court found significant contradictions and gaps, particularly regarding the applicant's capacity, instructions to her lawyer, and the solicitation of the gift.

The court determined the record was inadequate for a fair determination and ordered a short motion to schedule a hearing with viva voce testimony to resolve the factual disputes.

The plaintiff in a personal injury claim moved for partial summary judgment to strike the defendants' Limitations Act defence.

The plaintiff argued she did not discover her "threshold injuries" until almost three years after the motor vehicle accident, commencing her claim within a year of that discovery.

The court dismissed the motion, finding genuine issues for trial regarding the discoverability of the claim, particularly concerning the "permanent serious impairment" threshold under the Insurance Act.

The judge declined to exercise enhanced fact-finding powers under Rule 20.04(2.1) due to the risk of duplicative proceedings, inconsistent findings of fact, incomplete medical evidence, and issues with the plaintiff's cross-examination affecting credibility assessment.

The defendants sought security for costs against the plaintiff, alleging outstanding costs orders and that the action was frivolous and vexatious.

The court granted the motion for security for costs against three of the four defendants, finding the claims against them to be frivolous and vexatious and rejecting the plaintiff's plea of impecuniosity due to unexplained resources.

The claim against the fourth defendant was not deemed frivolous or vexatious at this stage due to unresolved credibility issues.

The successful moving parties were deprived of their costs for the motion due to a procedural breach.

The defendant moved to strike the claim as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The court found the claim was not frivolous or vexatious but constituted an abuse of process because the conspiracy and fraud claims were substantially identical to those in a pending "Weeks Action," and the plaintiffs commenced a new action instead of seeking leave to amend the existing one.

The court declined to strike the action entirely, instead staying the proceeding to allow the plaintiffs to seek leave to add the defendant to the "Weeks Action." The stay could be lifted if the plaintiffs were unable to add the defendant due to prejudice or limitation periods arising after this action's commencement.

The City of Toronto brought a motion for summary judgment in a slip and fall case.

The plaintiff alleged the City created a hazard (protruding bolts) on land it owned but leased to Humber College.

The court found that the plaintiff failed to prove the City created the hazard while it had control of the premises (prior to 2004).

Furthermore, the City was not an "occupier" under the Occupiers' Liability Act at the time of the accident in 2010, as the lease transferred maintenance responsibility to Humber College.

The court also found no common law duty of care owed by the City given the passage of time, the tenant's explicit duties, and the obvious nature of the hazard.

The motion for summary judgment was granted, and the action against the City was dismissed.

The Royal Bank of Canada brought a motion for judgment against Mohammed Elsioufi for outstanding loan debts, after Elsioufi was noted in default.

The bank also sought a declaration that the judgment debt would survive any future bankruptcy discharge of the defendant, pursuant to section 178(1)(e) of the Bankruptcy and Insolvency Act, alleging fraudulent misrepresentation.

The court granted judgment for the liquidated debt amounts but refused to issue the pre-emptive declaration regarding bankruptcy discharge, holding that it lacked jurisdiction to make such a hypothetical determination before a bankruptcy proceeding was initiated and without notice to a potential Trustee in Bankruptcy.

This endorsement summarizes the conclusions of an initial case conference, directing the parties to prepare a consent order to convert an application into an action.

The order is to outline the filing of pleadings, the use of existing affidavits and cross-examinations in lieu of discoveries, the exchange of affidavits of documents, and a case timetable.

The endorsement also addresses the responding parties' desire to bring a summary judgment motion on a limitation issue, advising them to assess its potential to substantially shorten or simplify a trial versus the risk of unnecessary delay.

The defendants, an accounting firm and an individual accountant, brought a motion for summary judgment to dismiss the plaintiff's professional negligence claim based on the Limitations Act, 2002.

The plaintiff alleged that the defendants' failure to timely file tax returns resulted in the loss of refundable dividend tax on hand (RDTOH) and associated penalties and interest.

The court considered whether the plaintiff's claim was discoverable more than two years prior to its commencement on August 1, 2012.

The court found that the plaintiff had sufficient knowledge of the injury, its cause, and the identity of the wrongdoers by June 2010 at the latest, and that a proceeding would have been a legally appropriate means to seek a remedy at that time, despite ongoing mitigation efforts and the defendants' failure to advise of a potential claim against them.

The court dismissed the plaintiff's arguments regarding prematurity, fraudulent concealment, and estoppel.

Following a successful appeal of a Master's order regarding a certificate of pending litigation, the appellants sought substantial indemnity costs based on an ex parte non-disclosure and settlement offers.

The court declined substantial indemnity but awarded partial indemnity costs with a premium for a bona fide settlement offer made prior to the hearing.

Costs were fixed at $24,805.22 inclusive of the motion below and the appeal.

The defendants brought a motion to compel the plaintiff to produce three categories of documents in its affidavit of documents.

The plaintiff argued that it was prohibited from producing these documents by United States regulatory and privacy laws, as well as US court protective orders.

The court dismissed the motion, finding that the foreign laws and orders were entitled to comity.

The court held that the plaintiff should not be compelled to violate foreign laws and directed the defendants to seek production or consent directly from the relevant US authorities or courts, with the plaintiff's reasonable cooperation.

The applicants, Lina Lochner and Paul Lochner, brought a motion to set aside a judgment dismissing their action for failure to appear at trial.

The court dismissed the motion, finding that their non-attendance was deliberate and unreasonable, and that they failed to provide prima facie evidence of the merits of their own claims, focusing instead on their settled co-plaintiff's claim.

The court emphasized that deliberate non-attendance, even by self-represented litigants, does not warrant setting aside a judgment, and that access to justice is not without limits when litigants exhibit contemptuous behavior.