Stephen Cavanagh

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 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 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 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 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 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 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.

The defendant, Robert Gates, brought a motion for summary judgment to dismiss the action brought by the plaintiff, Melanie Gates, on the grounds that it was commenced after the expiration of the two-year limitation period under the Limitations Act, 2002.

The court found that there was a genuine issue requiring a trial regarding the discoverability of the claim, specifically when Melanie Gates knew or ought to have known that Robert Gates was a potential party at fault.

The motion for summary judgment was dismissed, and the limitation defence was left for adjudication at trial.

Mississippi River Power Corporation (MRPC) sued WSP Canada Inc. and other defendants following the failure of a penstock in a hydroelectric facility.

WSP Canada Inc. (collectively "Walker") moved for partial summary judgment to limit its liability to MRPC to $2,000,000, citing an insurance covenant in their professional services contract.

MRPC argued there were two distinct contracts or that the covenant did not apply to the construction phase.

Other defendants brought responding motions seeking to extend this liability limitation to them.

The court found there was one extended professional services contract, that the insurance covenant applied to limit Walker's professional liability to $2,000,000, and that the benefit of this limitation extended to the other defendants to prevent subverting the risk allocation and avoid injustice.

Partial summary judgment was granted, limiting the liability of Walker and the remaining defendants to MRPC to $2,000,000.

The defendants moved for summary judgment to dismiss a professional negligence action arising from a gas station purchase.

The plaintiffs, former shareholders of a bankrupt corporation, alleged their lawyer failed to update a TSSA certificate, leading to deficiencies.

The court found the plaintiffs' claims were personal, not corporate, and were barred by the Limitations Act, 2002, as they were discovered in May 2008, but the action was commenced in December 2010.

The court also ruled that a nunc pro tunc order under s. 38 of the Bankruptcy and Insolvency Act was invalid as it was sought after the limitation period expired, and that the rule in Foss v. Harbottle barred the plaintiffs' claims for loss of investments and income.

The defendants' motion for summary judgment was granted, and the plaintiffs' cross-motion was dismissed.

The appellant appealed the dismissal of his claim on the grounds that it was struck out as outside the jurisdiction of the Superior Court.

The claim was based solely on an alleged infringement of the Human Rights Code, which is prohibited under s. 46.1(2) of the Human Rights Code.

The motion judge found no alternative cause of action in the statement of claim.

The Court of Appeal dismissed the appeal but granted the appellant leave to bring a motion in Superior Court within 45 days to amend his statement of claim to bring it within the court's jurisdiction.

The defendants brought a motion by way of a special case to determine whether their corporate representative was required to answer questions on discovery based on personal knowledge acquired outside his capacity as an officer or employee of the defendants.

The representative had previously worked for a related non-party corporation.

The court held that the representative is not required to answer questions based on personal knowledge acquired in another capacity, as doing so would effectively allow discovery of a non-party without leave.

However, if the representative possesses personal knowledge that the corporate defendant would be required to disclose anyway, he should provide it for efficiency.