Stephen Cavanagh

Wawanesa Mutual Insurance Company sued Barry Marta and Lawson LLP for solicitor's negligence.

The lawyer defendants moved under Rule 21.01(3)(b) of the Rules of Civil Procedure to have the action stayed or dismissed, arguing Wawanesa lacked legal capacity to sue, contending the claim was a subrogated action requiring the insured's name.

The court dismissed the motion, finding Wawanesa, as a licensed insurance company, possessed the legal capacity to commence the action, and that the motion under Rule 21.01(3)(b) was not for assessing the merits of the claim.

The plaintiff brought a motion to amend his statement of claim and to continue the action under the simplified procedure, just weeks before a scheduled six-day trial.

The court granted leave to amend the pleadings, finding that the amendments arose from the same factual matrix and would not cause prejudice that could not be compensated by costs or an adjournment.

However, the court dismissed the request to continue under the simplified procedure, noting the motion was brought late in breach of a pre-trial order and that it would be unfair to the defendant to change the procedure solely to allow the plaintiff to avoid adverse costs consequences.

The defendants brought a motion to enforce an alleged settlement of a professional negligence action.

The plaintiff had offered to settle on a dismissal without costs basis.

The defendants' counsel accepted the offer 'provided that' the plaintiff execute a standard LawPRO release, which contained a confidentiality clause.

The plaintiff refused to sign the release and withdrew the offer.

The court dismissed the motion, finding that the requirement to sign the specific release with a confidentiality clause was an essential term and constituted a counteroffer, meaning no settlement was reached.

The moving party sought leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs were fixed at $2,500 payable forthwith to the responding construction company.

The plaintiff brought a motion to set aside the costs provision of a 2018 formal judgment.

The formal order, drafted by the defendants' counsel and approved by the plaintiff's counsel, awarded costs against only one corporate defendant, contrary to the trial judge's endorsement which awarded costs against multiple defendants.

The corporate defendant against whom costs were awarded subsequently declared bankruptcy.

The court found that there was no meeting of the minds between counsel regarding the costs liability and that the formal order contained an error arising from an accidental slip or omission.

The court set aside the costs provision under Rule 59.06 and ordered a rehearing on the issue of costs.

This motion by the plaintiff sought to vary a 2018 judgment regarding costs, specifically to include a corporate defendant (1779042 Ontario Ltd.) as jointly liable for a $95,000 costs award, as the other corporate defendant had gone bankrupt.

The plaintiff initially sought rectification based on a clerical error under Rule 59.06 but later amended the motion to argue there was no agreement on costs, seeking a new determination.

The defendant 1779042 Ontario Ltd. brought a cross-motion to vary the costs endorsement.

The court adjourned the motion to allow the defendant to respond to the amended motion and new affidavit, permitting cross-examinations, and reserving costs of the adjournment.

The moving party sought an extension of time to bring a motion for leave to appeal an interlocutory order to the Divisional Court.

The moving party had mistakenly filed a notice of appeal in the Court of Appeal, believing the order was final.

The court applied the test for extending time, finding that the moving party had a bona fide intention to appeal, adequately explained the delay, and that the respondent suffered no prejudice.

The court also found the proposed appeal had some merit, meeting the low threshold required.

The motion to extend time was granted.

The plaintiffs brought a motion for partial summary judgment on liability in a solicitor's negligence action against their former lawyer and his firm.

The plaintiffs alleged the lawyer failed to prepare a promissory note to support a General Security Agreement, weakening their bargaining position with a debtor.

The court found that while the lawyer breached the standard of care by acting in a conflict of interest and failing to prepare the note, the plaintiffs suffered no compensable loss as the debt was recognized, secured, and largely repaid.

The court dismissed the plaintiffs' motion and granted a 'boomerang' summary judgment dismissing the action entirely.

This is a consolidated appeal from two summary judgments and a costs order.

The appellants sought to hold a law firm liable for the actions of a lawyer who shared office space, alleging he was either a partner or held out as one.

The motion judge found the lawyer was not a partner and not held out as such, dismissing the claims against the firm.

The motion judge also issued a "boomerang" summary judgment in favour of the firm.

The Court of Appeal upheld the motion judge's findings, concluding there was no palpable and overriding error in determining the lawyer was not a partner and that the appellants did not subjectively rely on any "holding out." The Court also affirmed the motion judge's authority to issue a boomerang order and her discretion regarding costs, including declining a Sanderson order.

The defendants brought a second motion to strike the plaintiff's re-amended statement of claim in an action arising from a Ponzi scheme.

The court found that the plaintiff had addressed the deficiencies identified in a previous decision regarding the damages claimed against most defendants.

However, the court struck the claim against two defendants (the McKillips) without leave to amend, finding no material facts were pleaded to establish a duty of care.

The court also held that the defendants were precluded from raising new arguments about the duty of care that they could have raised on their first motion to strike, as serial attacks on a pleading constitute an abuse of process.

The applicant excess insurers sought a declaration that claims against a lawyer and his firm for negligent tax advice did not constitute a 'single claim' or 'related claims' under the respondent primary insurer's professional liability policy.

The lawyer had advised multiple clients to participate in a charitable donation tax shelter that the Canada Revenue Agency later disallowed as a sham.

While the claims shared common elements regarding the donation plan, one client also claimed negligence regarding a separate life and disability plan.

The court applied the test from Simpson Wigle and found that the advice regarding the life and disability plan was a distinct error, different in nature and kind from the donation plan error.

Consequently, the claims were not related, and the respondent's $2 million aggregate policy limit was available.

The applicant insurer applied for a declaration that the respondent and his sole proprietorship were vexatious litigants.

The respondent had commenced four different lawsuits in Ontario and Quebec against the applicant and its representatives after the applicant refused to pay an invoice for fees related to a life insurance claim.

Three of the lawsuits had already been dismissed, and the respondent had also filed complaints with the Law Society.

The court found that the respondent's conduct met the criteria for a vexatious litigant, as he repeatedly brought actions on issues already determined, for improper purposes, and engaged in forum shopping.

The application was granted, and the respondents were declared vexatious litigants.

The defendants sought over $300,000 in substantial indemnity costs following partial success on a motion to strike the plaintiff's pleadings.

The plaintiff, acting as trustee in bankruptcy for a company involved in a Ponzi scheme, opposed the costs request and argued that costs should be reserved.

The court declined to fix costs immediately, finding it more just to reserve the costs of the initial motions pending the outcome of further motions to strike the reamended statement of claim.

This endorsement addresses costs following a summary judgment motion where the plaintiffs succeeded against Paul McEnery but failed against the law firm Williams McEnery/Williams Litigation Lawyers.

The law firm, as the successful defendant, was awarded its partial indemnity costs of $56,398.22 from the plaintiffs.

The plaintiffs, while successful against Mr. McEnery, were only awarded $2,500 in costs from him, as most of their litigation expenses were attributable to the unsuccessful claim against the law firm.

The court denied the plaintiffs' request for a Sanderson order, which would have made Mr. McEnery responsible for the law firm's costs, finding it would not be just or fair given the plaintiffs' deliberate decision to pursue the law firm and the distinct nature of the claims.

The plaintiff initiated three actions stemming from a motor vehicle accident: a tort claim, an underinsured motorist claim, and a solicitor's negligence claim against his former lawyer.

The defendants moved to consolidate the actions and for a broad waiver of solicitor-client privilege and the deemed undertaking rule.

The court ordered the actions to be tried together or one after the other, at the discretion of the trial judge.

It denied the broad waiver of solicitor-client privilege and the deemed undertaking rule for information from the solicitor's negligence action for use in the other two actions, emphasizing the importance of privilege.

However, it dispensed with the deemed undertaking rule for information from the tort and OPCF actions for use in the solicitor's negligence action, and between the tort and OPCF actions.

The defendants in three related actions (a tort action, an OPCF underinsured motorist action, and a solicitor's negligence action) brought motions to consolidate the proceedings or have them heard together, and to dispense with the deemed undertaking rule.

The plaintiff opposed the inclusion of the solicitor's negligence action and the waiver of solicitor-client privilege.

The court ordered that the three actions be tried together or one after the other, subject to the trial judge's discretion.

However, the court held that the plaintiff's waiver of solicitor-client privilege applied only to the solicitor's negligence action and refused to dispense with the deemed undertaking rule for evidence obtained in that action, protecting the plaintiff's privilege in the tort and OPCF actions.

The plaintiffs brought actions in debt against a lawyer and moved for summary judgment against both the lawyer and the law firm he shared space with, alleging they were partners or that the firm held him out as a partner.

The court granted summary judgment against the lawyer for the unpaid loans.

However, the court dismissed the claims against the law firm, finding that the lawyer was a sole practitioner and not a partner in fact.

Furthermore, while the lawyer may have been held out as a partner, the plaintiffs failed to prove they extended credit in reliance on that representation.

The court granted a 'boomerang' summary judgment dismissing the claims against the law firm despite the lack of a cross-motion.

The defendants brought motions to strike the plaintiff's statement of claim, which sought contribution and indemnity, damages, and disgorgement arising from the defendants' alleged involvement in a Ponzi scheme operated by Golden Oaks.

The court struck the claims for contribution and indemnity without leave to amend, finding no common liability to third parties and no viable duty of care owed to the unsecured creditors.

The claims for damages were struck with leave to amend to properly plead the losses suffered by the company.

The claims for disgorgement and accounting were permitted to proceed.

The plaintiffs sold a retirement home and alleged that their lawyer and the purchaser's lawyer failed to ensure $109,000 was held in trust for tax liabilities.

The defendant lawyers moved for summary judgment, arguing the claims were statute-barred.

The court granted the motions, finding the plaintiffs failed to rebut the presumption of discoverability and had knowledge of the material facts more than two years before commencing the action.

The court also dismissed the fraudulent misrepresentation claim due to a lack of evidence.

The defendants appealed and the plaintiffs cross-appealed a Master's decision dismissing a motion for summary judgment regarding the expiry of a limitation period in a motor vehicle accident claim.

The defendants argued the action was statute-barred, while the plaintiffs argued the limitation period had not expired due to discoverability.

The Superior Court of Justice dismissed both appeals, finding no error in the Master's conclusion that the evidence on discoverability was unclear and intertwined with issues of severity, causation, and damages.

The court held that the limitation period issue could not be justly decided on a summary judgment motion and should be determined on a full evidentiary record at trial.