Thomas M. Slahta

The plaintiff brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to examine opposing litigation counsel under Rule 39.03 in connection with a forthcoming motion for particulars.

The motion arose after cross‑examination revealed that the affiant, a lawyer at the plaintiff’s firm, lacked personal knowledge of key factual assertions in her affidavit and had relied on information prepared by counsel.

Applying the factors articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd., the court held the proposed examination was relevant, arose from matters uncovered during cross‑examination, would not cause non‑compensable prejudice, and could not reasonably have been sought earlier.

The court further held that proportionality and a contextual approach supported allowing the examination where the relevant information was uniquely within counsel’s knowledge.

Leave to examine the lawyer was therefore granted, with costs reserved.

Following a successful civil action in which a transfer agreement was set aside and the plaintiff was declared to hold a one‑third interest in certain assets, the court determined the appropriate scale and quantum of costs.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendants’ conduct involved breach of fiduciary duty, undue influence, misrepresentation, and unconscionability.

The court held that substantial indemnity costs were warranted because the defendants’ conduct was reprehensible, including exploiting a vulnerable family member and deliberately failing to produce relevant financial records during litigation.

After considering objections regarding duplication of counsel, abandoned claims, and the reasonableness of hours billed, the court fixed costs globally.

The court awarded $525,000 inclusive of taxes and disbursements.

Following a judgment in favour of the plaintiff, the court addressed the appropriate process for determining costs.

The plaintiff sought substantial indemnity costs of approximately $587,000, while the defendants argued that the matter should be referred to an assessment officer because the plaintiff had not produced detailed dockets or invoices supporting the claimed fees and disbursements.

The court held that under Rule 57.01 of the Rules of Civil Procedure, the trial judge should ordinarily fix costs and that referral to an assessment officer is reserved for exceptional cases.

The absence of detailed dockets did not make the case exceptional, particularly where a proper costs outline had been provided in accordance with the rules.

The court declined to order an assessment and directed a further written exchange of submissions after disclosure of dockets if requested.

The plaintiff's husband died in a construction accident, leaving her as the sole heir to his one-third interest in a successful family construction and real estate business.

While emotionally distraught and relying heavily on her sister-in-law to manage the estate and business affairs, the plaintiff signed a Transfer Agreement giving up her husband's shares and real estate interests in exchange for a condominium of significantly lesser value.

The plaintiff brought an action to set aside the Transfer Agreement.

The Superior Court of Justice found that the sister-in-law and brother-in-law had abused their relationship of trust, and set aside the agreement on the grounds of undue influence, unconscionability, misrepresentation, and breach of fiduciary duty.

The court also declared that the plaintiff was entitled to a one-third interest in various joint venture properties that had been improperly diverted to a company solely owned by the sister-in-law.

The appellants appealed a motion judge's decision dismissing their motion to stay the respondents' litigation based on an arbitration clause in their shareholder agreements.

The respondents argued the parties never reached an agreement on the contents of a schedule, meaning no arbitration agreement existed.

The Court of Appeal allowed the appeal and stayed the litigation, noting that the respondents had not sought a declaration that the agreements were void ab initio, the agreements contained severability clauses making the arbitration clauses separate contracts, and under the Arbitration Act, an arbitral tribunal may rule on its own jurisdiction.

The litigation was stayed except with respect to three companies that were not parties to any shareholder agreement.

A not‑for‑profit campus radio corporation sought a winding‑up order under the Winding Up and Restructuring Act after losing its broadcast licence, premises, and funding.

The opposing party argued the court lacked jurisdiction, that the members’ resolution was invalid because it referred to “dissolution” rather than “winding up,” and that potential derivative claims should proceed.

The court held that the distinction between “dissolve” and “wind up” was immaterial in the circumstances and that the corporation had no meaningful assets or operational purpose.

The court rejected the argument that speculative derivative claims justified preserving the corporation’s existence.

A winding‑up order was granted and the opposition dismissed.