Tanya A. Pagliaroli

The applicants, who were former counsel to the respondent in a dismissed medical malpractice action, brought an application under s. 140 of the Courts of Justice Act to have the respondent declared a vexatious litigant.

Following the dismissal of the underlying action, the respondent had commenced three separate lawsuits against the applicants, all of which were dismissed as frivolous, vexatious, and an abuse of process.

The court found that the respondent persistently attempted to re-litigate determined issues, failed to pay costs awards, and engaged in harassing and manipulative behaviour towards the court and counsel.

The application was granted, and the respondent was prohibited from instituting or continuing any proceedings without leave of the court.

Appeal from a Master's Report in ten lien actions tried together by reference concerning unpaid amounts under an elevator maintenance contract.

The appellant abandoned all grounds except the rejection of an equitable set-off claim based on alleged inadequate maintenance, suspension or termination of service, and a new promissory estoppel theory tied to a flood emergency.

The court held that the estoppel argument was a new issue not raised at trial, and that the Master made no reviewable error in finding the respondent had suspended service in accordance with the contract and that the alleged $75,000 set-off had not been proven.

The Master's Report was confirmed.

Following the dismissal of the appeal and cross-appeal, the Court of Appeal considered the parties' costs submissions.

The court declined to award costs to any party, citing the tragic circumstances of the case and the reasonableness of the appeal, which raised bona fide legal issues.

The appellants appealed the dismissal of their medical malpractice claim following the death of a mother from post-partum haemorrhaging hours after a caesarean section.

The trial judge found that while one anaesthetist breached the standard of care by failing to promptly notify an obstetrician of the patient's deteriorating condition, this breach did not cause her death, which the judge attributed to an untreatable blockage in her lung caused by disseminated intravascular coagulopathy (DIC).

The Court of Appeal dismissed the appeal, holding that the trial judge's findings on the cause of death and lack of causation were supported by the evidence and did not amount to palpable and overriding errors.

A dissenting judge would have ordered a new trial, finding the trial judge's cause of death theory was unsupported by the evidence and not advanced by either party.

Limited partners in a real estate partnership commenced an action alleging misconduct by accountants, a lawyer, and others in relation to unauthorized corporate changes and mortgages affecting partnership property.

After the action had been set down for trial, certain defendants indicated they would bring motions for summary judgment arguing the plaintiffs lacked standing because the alleged losses were those of the partnership.

The plaintiffs sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a cross‑motion for summary judgment in response.

The court considered modern principles favouring broad access to summary judgment following Hryniak v. Mauldin and whether permitting the motion would promote a proportionate and efficient resolution.

Given that the defendants’ proposed motions could require extensive evidentiary responses and potentially raise broader issues, the court concluded that allowing the plaintiffs to bring their own motion could streamline the litigation.

Leave was therefore granted.

The appellant filed a Notice of Abandonment for the appeal.

The Court of Appeal ordered costs of the abandoned appeal to the respondent, fixed at $7,500 inclusive of disbursements and taxes.

The defendants brought motions seeking to strike or dismiss the plaintiff’s summary judgment motion and for security for costs in a commercial dispute arising from an alleged breach of an agreement of purchase and sale for resort property.

The plaintiff alleged breach of contract, fraudulent misrepresentation, slander of title, and conspiracy relating to a failed $16 million transaction.

The court held that the action involved complex factual issues and significant credibility disputes, making it unsuitable for determination by summary judgment at an early stage.

The court further found that the corporate plaintiff failed to establish impecuniosity with sufficient evidentiary detail and that there was no proven causal link between the defendants’ conduct and the plaintiff’s financial distress.

Security for costs was therefore ordered while the summary judgment motion was stayed pending further steps in the litigation.

Following a successful appeal that set aside orders directing an assessment of the appellant's legal fees, the parties submitted written arguments regarding costs.

The Court of Appeal fixed the costs of the appeal, including a previous motion to quash, at $10,000 inclusive of disbursements and taxes in favour of the appellant.

The Court also confirmed that any monies paid on account of the previous costs award must be returned.

The appellant law firm appealed an order refusing to set aside a consent order that referred its account to an assessment officer.

The client had retained the firm under a contingency fee agreement to pursue a long-term disability claim, which settled.

The client later sought an assessment of the account.

A dispute arose over the validity of the contingency fee agreement.

The Court of Appeal held that an assessment officer generally lacks jurisdiction to determine disputes regarding the validity or effect of a retainer agreement, including contingency fee agreements.

Such disputes should be determined by a judge.

The appeal was allowed, the consent order was set aside, and the matter was remitted to the Superior Court of Justice.

Several defendants brought a motion seeking removal of the plaintiff’s law firm on the basis of an alleged conflict of interest.

A partner in the firm was both a potential witness and had a substantial financial interest in the plaintiff company through share ownership and mortgage financing.

The court considered the governing principles for disqualification of counsel, including the framework in MacDonald Estate v. Martin and the discretionary factors relating to a lawyer-witness scenario set out in Essa (Township) v. Guergis.

While the partner was likely to be a material witness and had a financial stake aligned with the plaintiff, the court concluded there was no real risk to the proper administration of justice and that the plaintiff’s right to counsel of choice should prevail.

The motions to remove counsel were dismissed.

In a wrongful dismissal action, the plaintiff brought a motion to amend his Reply to remove references to having received and relied upon legal advice regarding the interpretation of a termination clause in his employment contract.

The defendant opposed the amendment, arguing it constituted an attempt to withdraw admissions and sought a declaration that the plaintiff had waived solicitor‑client privilege over the legal advice.

The court held that the pleaded statements about receiving and relying on legal advice were deliberate and unambiguous admissions.

Because the plaintiff failed to satisfy the test for withdrawing admissions under Rule 51.05—providing no evidence of inadvertence, triable issue, or absence of prejudice—the amendment was refused.

The court further found that by placing his state of mind and the legal advice received directly in issue in the pleadings, the plaintiff impliedly waived solicitor‑client privilege regarding that advice.

A solicitor brought an application to set aside a consent order referring the solicitor’s account to an Assessment Officer for assessment.

The solicitor argued the Assessment Officer lacked jurisdiction and that consent did not prevent the court from setting aside the order.

The court held that the only dispute raised by the client concerned the quantum of the account and that the assessment properly fell within the officer’s jurisdiction under the Courts of Justice Act.

The interests of justice did not justify setting aside the consent order.

The application was dismissed and the client was awarded costs.

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.

The appellants appealed a trial judgment finding them totally liable for a rear-end motor vehicle collision.

The trial judge had purported to determine liability by taking the appellants' evidence at its highest, without resolving conflicting testimony regarding the respondent's use of turn signals and vehicle positioning.

The Court of Appeal found that the trial judge failed to make necessary factual findings and misapplied the law regarding the onus on a following driver and contributory negligence.

The appeal was allowed and a new trial was ordered.

The plaintiff appealed the dismissal of his medical malpractice action for delay under Rule 24.01(1)(c).

The motion judge had found inordinate delay and presumed prejudice, relying on a hearsay affidavit from the defendants' counsel to find actual prejudice.

The Court of Appeal allowed the appeal, holding that the motion judge erred by focusing on the entire history of the action despite previous orders excusing earlier delay, by failing to recognize that documentary evidence and discovery transcripts rebutted the presumption of prejudice, and by relying on an untested hearsay affidavit to establish actual prejudice.