Stephen Cavanagh

The Roman Catholic Corporation of the Episcopal Archdiocese of Ottawa brought a motion for reconsideration of an appeal that had been allowed on June 5, 2017.

The motion was dismissed on the grounds that it was not an exceptional case warranting reconsideration, and that the moving party was attempting to raise issues on the motion that could have been, but were not, raised on the original appeal.

The court awarded costs to the respondent on a partial indemnity basis, payable forthwith.

The plaintiffs sued the lawyer who represented the purchaser in a share sale, alleging he falsely stated that funds had been deposited in a trust account.

The lawyer and his firm moved to strike the claims against them.

The court struck the claim for negligent misrepresentation, finding that a lawyer owes no duty of care to an opposing party who is represented by their own counsel.

However, the court refused to strike the claim for intentional misrepresentation, finding the plaintiffs had pleaded all necessary elements.

The court also declined to strike a cross-claim for contribution by a co-defendant bank.

The appellant challenged the application judge's finding that the respondent's insurance policy was excess to the appellant's policy.

The appellant argued the application judge erroneously applied the Minnesota approach to determine policy priority.

The Court of Appeal found no error, as the application judge properly interpreted the policy terms to determine that the respondent's policy was specifically made excess to the appellant's.

The appeal and cross-appeal were dismissed.

Fresh evidence indicated the underlying claim had been settled within the appellant's policy limits, rendering the cross-appeal issues moot.

The moving parties, former solicitors for the plaintiff, sought leave to intervene in three medical negligence actions.

The plaintiff had commenced a solicitor's negligence action against them for allegedly missing a limitation period.

The moving parties argued they had an interest in the medical actions because the outcome would affect their liability.

The court refused leave to intervene in the main medical actions, finding the solicitors had no involvement in the medical care and their participation could prejudice the existing parties.

However, the court granted them leave to intervene in the pending motion for judgment regarding the limitation issues.

Following a motion to consolidate 48 actions where the moving defendants were largely successful but the plaintiff successfully resisted consolidation of one action, the court determined costs.

Considering the divided success and a reasonable settlement offer made by the plaintiff, the court ordered the moving defendants to pay partial indemnity costs of $7,500 to the plaintiff and $5,522.91 to the successful co-defendant, Boston Pizza.

The appellants appealed a trial judgment, arguing that there was an understanding that the respondent had a 24-hour cooling-off period to withdraw from a deal, and that the respondent failed to communicate this understanding.

The Court of Appeal upheld the trial judge's findings that the evidence was too tentative to support a legally enforceable cooling-off provision, and that even if such a provision existed, the appellants failed to demonstrate that withdrawal was communicated within the 24-hour period.

The appellants' damages claim was found to be speculative.

The plaintiff commenced 48 separate actions (38 in Superior Court, 10 in Small Claims Court) relating to various loan transactions, primarily alleging negligence and breach of fiduciary duty against its former lawyers.

The defendant lawyers brought a motion to consolidate the actions.

The court ordered that 37 of the Superior Court actions be consolidated into a single action to avoid multiplicity of proceedings and reduce costs.

The 10 Small Claims Court actions were also consolidated and ordered to be transferred and tried together with the Superior Court action.

All actions were ordered to be case managed.

The plaintiff brought an action alleging he was wrongfully ejected from a concert at the request of the moving defendant due to racial discrimination, and subsequently assaulted by security staff.

The moving defendant brought a motion to dismiss the action against him, arguing the court lacked jurisdiction as the claim was based solely on an infringement of the Human Rights Code.

The court granted the motion, finding that there is no independent tort of discrimination and the Human Rights Tribunal has exclusive jurisdiction over such claims.

The defendant brought a motion to disqualify the plaintiff's counsel, alleging a conflict of interest because the counsel briefly acted for third parties in the same action.

The court dismissed the motion, finding no evidence that the plaintiff's lawyers received confidential information from the defendant, that the defendant was ever their client, or that the third parties supported the motion.

The court awarded substantial indemnity costs to the plaintiff due to the unsupported allegations of professional misconduct.

The applicant condominium corporation sought an order enforcing its declaration and rules against the respondents, who were leasing their unit on a short-term basis through platforms like Airbnb.

The respondents argued that the application should be stayed for failure to mediate/arbitrate, that other owners needed notice, and that the rules did not prohibit their activities.

The court found that the respondents had waived the arbitration requirement, that notice to other owners was unnecessary, and that the short-term rentals violated the 'single-family dwelling' restriction in the declaration.

The court ordered the respondents to comply with the declaration and rules.

The applicant insurer (LawPRO) sought a declaration that the respondent insurer (Lloyd's) was obliged to contribute to the costs of defending their common insured.

The respondent argued the application was untimely under the Limitations Act and that its policy was excess, not primary.

The court found Lloyd's policy to be in an excess position and that the case was not analogous to situations where equitable contribution applies between primary and excess insurers (e.g., Broadhurst).

The application was dismissed as premature, though the court also ruled that the claim was not statute-barred under the Limitations Act, as the claim had not yet been "discovered" given the ongoing litigation against the insured.

The defendants, TSV Holdings Ltd. and Azure Health Care Ltd., brought a motion to prevent the plaintiffs, Cimtel Inc. and Wireless Resident Nurse Alert Technology Inc., from examining Clayton Astles, CEO of Azure, for discovery.

Astles was previously president of Austco Canada, a subsidiary, and was involved in the events leading to the litigation.

The court applied the factors from Farris v. Staubach to determine if the plaintiff's choice of examiner should be interfered with.

The court found Astles had sufficient knowledge and direct involvement, and that substituting another representative would prejudice the plaintiffs.

The motion was dismissed, upholding the plaintiffs' right to examine Astles.

This is a costs endorsement following a six-day trial where the defendants were entirely successful.

The court applied the usual rules for costs awards, including partial indemnity basis (60% of actual costs), proportionality, and recovery of disbursements.

The defendants claimed $131,126.00 plus HST and disbursements.

The plaintiffs argued for a maximum of $50,000.

The court awarded the defendants $65,000.00 plus HST and most disbursements, disallowing certain unexplained travel expenses.

Costs were made payable by the plaintiff Ben Kutner to the defendants within 30 days.

The plaintiffs brought a motion to amend their statement of claim to add allegations that the defendants’ litigation conduct, including alleged delay in producing privileged documents, constituted a breach of fiduciary duty and warranted punitive damages.

The court applied Rule 26.01 of the Rules of Civil Procedure and the test for allowing amendments, including whether the proposed claims were tenable at law.

The court held that no fiduciary duty exists between opposing parties during the conduct of litigation in the adversarial system and that litigation conduct alone cannot constitute an independent actionable wrong supporting punitive damages.

Alleged delay in document production is addressed through costs, not substantive claims.

The proposed amendments were therefore not legally tenable and were refused, though certain limited trial questions concerning knowledge of competing intellectual property claims were permitted.

The defendants brought a Rule 21 motion seeking determination of questions of law in a defamation action arising from a television broadcast and newspaper article alleging the plaintiff union supported a terrorist organization.

The defendants argued the plaintiff failed to provide sufficient notice under s. 5(1) of the Libel and Slander Act and also challenged the legal capacity of an unincorporated trade union to sue in defamation.

The court held that the written notices provided by the plaintiff did not sufficiently specify the matter complained of as required by the statute, despite the plaintiff later identifying specific impugned words in the statement of claim.

Because proper notice is a mandatory precondition to bringing a libel action, the failure constituted a complete bar to the proceeding.

The court further commented that the legal capacity of trade unions to sue in defamation remains unsettled but declined to determine that issue on a Rule 21 motion.

The plaintiff appealed a Master's order limiting the cross-examination of the defendant's counsel on his affidavit filed in an undertakings and refusals motion.

The plaintiff argued that by filing the affidavit, the defendant's counsel gave evidence on substantive issues, thereby implicitly waiving solicitor-client and litigation privilege.

The Superior Court of Justice dismissed the appeal, finding that the Master applied the correct legal test and made no palpable and overriding error in concluding that the affidavit did not constitute a waiver of privilege.