Sonia Patel

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

The court considered costs arising from the adjournment of a motion to remove Osler, Hoskin & Harcourt LLP as counsel of record for the Defendants.

The adjournment was necessitated by privilege issues raised in the Plaintiff’s reply affidavit, which referenced potentially privileged communications.

The Defendants sought full or substantial indemnity costs, arguing the adjournment was predictable and should not have required a full day’s hearing.

The court found that while the Plaintiff’s position had little merit, it was not taken in bad faith or with egregious conduct.

Costs were awarded to the Defendants on a partial indemnity scale in the amount of $66,658.81.

The Plaintiff brought a motion to remove Osler, Hoskin & Harcourt LLP as counsel for the Defendants in a proposed investors' class action, citing conflicts of interest and allegations of professional misconduct stemming from Osler's extensive prior roles with the now-insolvent Wayland Group Corp. and its former directors.

The motion was adjourned because the Plaintiff's supplementary affidavit introduced serious new allegations and referenced potentially privileged documents received inadvertently.

The court ordered the Plaintiff to identify and describe the privileged documents in a new affidavit, allowing the Defendants to file supplementary materials and conduct cross-examinations.

The court emphasized the necessity of addressing privilege issues properly, despite the resulting delay and expense.