Whitney Abrams

The plaintiffs brought a motion seeking to disqualify Minden Gross LLP as counsel for the corporate defendant Synoptic Medical Assessments Inc. (SMAI) due to an alleged conflict of interest involving lawyer A. Irvin Schein.

The plaintiffs asserted that Mr. Schein had a prior solicitor-client relationship with plaintiff Mina Bechai and that his continued representation of SMAI, while also acting for Dr. Hanna (a director and shareholder of SMAI and an adverse party in a shareholder dispute), created a disqualifying conflict.

The court dismissed the motion, finding that the plaintiffs failed to establish a prior solicitor-client relationship between Bechai and Schein, or that any confidential information relevant to the current matter was exchanged.

The court also found no evidentiary support for other alleged conflicts and affirmed the director's right to instruct corporate counsel.

The appellants appealed a summary judgment decision rendered by the motion judge in favour of the respondent on claims for breach of contract and breach of trust under the Construction Act.

The appellants argued that the motion judge erred in finding no genuine issue requiring trial, contending that the case turned on credibility findings that required cross-examination or examination for discovery, which were unavailable under the simplified procedure.

The Court of Appeal dismissed the appeal, finding that the motion judge's factual findings were supported by the evidence and entitled to deference.

This endorsement addresses the costs arising from a two-week trial where the Plaintiff and Third Party were entirely successful.

The court awarded substantial indemnity costs for the trial, citing the Defendants' unreasonable litigation conduct and the Garber Defendants' rejection of a generous Rule 49 offer to settle.

Additionally, costs thrown away due to an adjournment caused by Ms. Garber's ill health were awarded against the Garber Defendants, though reduced from the amount claimed.

The decision also clarifies that the Costs Subcommittee's recommended rates for Rule 57 are outdated and discusses the limited relevance of a litigant's ability to pay costs without sufficient evidence.

This addendum addresses the plaintiffs' motion for summary judgment, which was not formally decided in the court's prior reasons.

The plaintiffs sought the return of a $50,000 deposit for a property purchase, arguing the agreement was invalid due to technicalities, including a lack of initials on an amendment, an uncrossed-out irrevocability clause, and incomplete written terms.

The court rejected these technical arguments, affirming that contract formation relies on an objective test of whether parties reached a meeting of the minds, considering both words and conduct, rather than strict adherence to formalities.

However, due to factual ambiguities and credibility issues arising from conflicting affidavits regarding whether an agreement was reached and the role of a key individual, the court determined that the issues were more properly resolved at trial.

Consequently, the plaintiffs' motion for summary judgment was dismissed.

The defendant brought a motion for summary judgment on his counterclaim for breach of contract arising from an aborted real estate transaction.

The plaintiffs had sued for the return of their deposit, arguing the agreement of purchase and sale was never finalized because the defendant failed to initial changes regarding chattels.

The court dismissed the motion, finding that conflicting affidavit evidence regarding whether the plaintiffs were informed of the acceptance and whether there was a true meeting of the minds created a genuine issue requiring a trial.

During a trial for nuisance, the defendants sought to introduce evidence of the plaintiff's alleged retaliatory conduct (e.g., loud music, smoke) to mitigate punitive damages.

The court ruled this evidence inadmissible, finding no causal connection between the plaintiff's post-nuisance conduct and the defendants' initial actionable conduct (building a dock) or their failure to rectify it.

The court emphasized that for such evidence to be relevant to punitive damages, it must have provoked the defendant's actionable conduct, and any defense based on the plaintiff's conduct influencing the failure to rectify must be pleaded.

The plaintiff brought a summary judgment motion seeking payment for unpaid construction equipment rentals and a declaration of breach of trust under the Construction Act.

The court found both corporate defendants liable for breach of contract and breach of trust, concluding they acted in concert to avoid liability.

One individual director, Aaron Goodman, was found jointly and severally liable for breach of trust due to his knowledge and acquiescence.

The action against the other two individual directors was dismissed due to insufficient evidence of their involvement.

The plaintiffs brought a motion under Rule 25.11 to strike out three paragraphs of the defendants' Statement of Defence and Counterclaim, arguing they were scandalous, frivolous, or vexatious.

The underlying action involved a dispute over a joint real estate venture and a Memorandum of Understanding.

The court declined to strike two paragraphs, finding them relevant to the issues of equity split and unconscionability.

However, the court struck out one paragraph alleging an anonymous threatening phone call, as it did not allege the call was made by the plaintiffs and was included solely to cast them in a bad light.