Warren Mueller

The plaintiff sued the defendant lawyer, Highley, and his insurer, LPIC, for professional negligence based on discussions Highley had with the plaintiff's lawyer concerning a priorities motion.

Highley had been retained by LPIC to defend another lawyer in a related matter, and the interests of Highley's client and the plaintiff were aligned at the time.

The motion judge refused to grant summary judgment dismissing the action against Highley and LPIC.

On appeal, the Divisional Court allowed the appeal and granted summary judgment, holding that a lawyer does not owe a duty of care to a non-client represented by their own counsel, even when their interests are aligned, due to a lack of proximity and compelling policy reasons.

The appellant investors appealed an order disqualifying their counsel and his merged law firm from continuing to represent them in a complex litigation against the respondent promoters.

The disqualification arose after the investors' law firm merged with another firm that had previously acted for the promoters in preparing the offering memorandum at the heart of the dispute.

The Divisional Court dismissed the appeal, finding that the merged firm failed to implement an ethical wall at the time the merger became effective, creating an irreconcilable conflict of interest and a risk of sharing confidential information.

The appellant appealed a Master's order denying leave to add a witness as a defendant and denying an amendment to the statement of claim.

The appellant had previously settled litigation with the respondents but later sought to set aside the settlement, alleging that the respondents had coerced witnesses into swearing false affidavits.

The appellant also sought to add a witness as a defendant for alleged conspiracy and perjury.

The Divisional Court dismissed the appeal, holding that the witness was protected by absolute witness privilege.

The court also upheld the Master's decision denying the amendment to set aside the settlement, noting that the appellant had not relied on the allegedly false evidence when deciding to settle and that litigants must take responsibility for assessing prospective untrue evidence.