William E. Pepall

The plaintiffs moved to set aside a Registrar's administrative dismissal for delay of their action against the defendant law corporation for lawyer's negligence.

The action, commenced in 2013, was dismissed in 2018 for failure to set it down for trial within five years, as required by Rule 48.14.

The court applied a contextual approach to the four-factor test for setting aside such dismissals, considering the plaintiffs' explanation for delay (inadvertence due to staff changes and maternity leave), their intent to prosecute, and the defendant's claim of prejudice (aging principal, health issues, memory deterioration).

The court found that both parties shared responsibility for the delay and, balancing the interests, decided to restore the action to active status with a strict new timetable for setting down for trial, with no costs awarded.

This is a costs endorsement following a successful summary judgment motion where the defendants' action was dismissed as statute-barred.

The defendants, as the successful parties, sought costs on a partial indemnity scale.

The plaintiffs opposed, arguing for a reduction based on the defendants' limited success on all grounds of the summary judgment motion and alleged conduct that lengthened the proceeding.

The court found no reason to depart from the usual rule that costs follow the event, rejecting the plaintiffs' arguments regarding distributive costs and alleged conduct.

The court fixed costs of the action at $156,599.20, inclusive of fees, disbursements, and HST, to be paid by the plaintiffs to the defendants.

The plaintiffs, Michael and Solbyung Coveley, brought a professional negligence action against their former law firm, Thorsteinssons LLP, and several lawyers, alleging negligent advice regarding tax appeals.

The defendants moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

The court found that the plaintiffs knew or ought to have known of their claim by October 27, 2010, when they received advice that fundamentally contradicted earlier assurances about the strength of their tax appeals.

As the action was commenced on November 2, 2012, more than two years after discovery, the claim was statute-barred.

The defendants' motion for summary judgment was granted, and the action was dismissed.

A condominium corporation passed a by-law to lease four common element parking spaces to each unit owner to address a parking dispute caused by a popular restaurant tenant monopolizing shared parking.

The appellant unit owner, who leased her units to the restaurant, challenged the by-law as invalid, unreasonable, and oppressive.

The application judge dismissed the application.

On appeal, the majority upheld the application judge's decision, finding the by-law valid and reasonable.

However, Justice Weiler dissented, holding the by-law invalid because it effectively created permanent exclusive use common elements without amending the declaration, and unreasonable because there was no evidence supporting an increase from two to four parking spaces per unit and no practical alternative parking existed.

The plaintiff, a former dental student, sued the University of Toronto and individual professors for breach of contract, negligence, and breach of fiduciary duty following her withdrawal from an Oral and Maxillofacial Surgery and Anaesthesia program due to substandard academic performance.

The defendants moved for summary judgment, arguing the court lacked jurisdiction over academic matters, the plaintiff had resolved the dispute by voluntarily withdrawing from the program without academic penalty, and the claim was statute-barred by the Limitations Act.

The court granted summary judgment, dismissing the action on all three grounds.

It found that the essential character of the plaintiff's claims related to academic evaluation, which falls under the exclusive jurisdiction of the University's internal appeal process.

Furthermore, the court determined that the plaintiff's acceptance of the offer to withdraw without academic penalty constituted a binding agreement to resolve her academic dispute, precluding a subsequent action.

Finally, the court held that the plaintiff had sufficient knowledge of the facts to commence her claim by June 2009 at the latest, making her September 2011 action outside the two-year limitation period.

In a bifurcated class action certification motion, the court considered whether unit-holders of a publicly traded real estate investment trust had pleaded viable causes of action arising from an allegedly conflicted property transaction that was later rescinded, causing a sharp drop in unit value.

The court held it was plain and obvious that officers and trustees did not owe fiduciary duties directly to unit-holders in the circumstances pleaded, and struck the fiduciary duty claims.

However, the breach of trust claims against certain trustees, grounded in the declaration of trust and the arguable ability of unit-holders to sue for dishonest or negligent breach of trustee obligations, were allowed to proceed.

The knowing assistance claim survived only against the former CEO, while similar claims against the vendor parties and their solicitors were struck for failure to plead active assistance in the trustee's breach.

Certification was dismissed as against the vendor parties and their solicitors.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

The plaintiff commenced an action against her former legal and financial advisors alleging negligence and breach of fiduciary duty in connection with advice provided during negotiation of a marriage contract.

The defendants brought summary judgment motions asserting that the action was statute‑barred under the Limitations Act, 2002 and constituted an abuse of process because the plaintiff had a statutory remedy under s. 56(4) of the Family Law Act to set aside the marriage contract against her spouse.

The court held the plaintiff failed to rebut the presumption of discoverability and knew or ought to have known of the material facts giving rise to her claims more than two years before commencing the action.

The court further held that attempting to obtain, through damages against advisors, relief that should have been pursued through family law proceedings constituted an abuse of process.

The appellants purchased a yacht for over $1 million and later sued for fundamental breach, returning the yacht.

After the close of pleadings, the action languished for over ten years with minimal steps taken.

The motion judge dismissed the action for delay under Rule 24 of the Rules of Civil Procedure and the court's inherent jurisdiction, finding the delay inordinate, inexcusable, and prejudicial.

The Court of Appeal upheld the dismissal, confirming that the court has inherent jurisdiction to dismiss an action for delay as an abuse of process when the delay is of such magnitude.

At a Commercial List case conference, the court addressed procedural issues relating to documentary production, privilege waiver, and the scheduling of discoveries.

The plaintiffs had expressed a desire to bring a motion to strike certain counterclaims, while certain defendants contemplated a motion for a further and better affidavit of documents.

The court declined to schedule those motions, directing instead that the matters be addressed through examinations for discovery and cooperative document production.

Counsel were directed to resolve production issues, exchange documents, and establish a protocol for property inspections to facilitate an expert valuation report.

The appellants, two former doctoral students, appealed an order striking their 187-page Statement of Claim as an abuse of process without leave to amend.

They conceded the original claim was properly struck but argued they should have been granted leave to file a narrower amended claim.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decision, as the proposed claims were an indirect attempt to appeal internal academic decisions that should be addressed through judicial review.

The appeal and leave to appeal costs were dismissed.

Following dismissal of a defendant law firm’s summary judgment motion in a securities class proceeding, the court addressed costs of the motion.

The plaintiff sought $150,000 in partial indemnity costs, asserting extensive preparation and the importance of the motion.

Applying Rule 57 of the Rules of Civil Procedure and s. 31(1) of the Class Proceedings Act, 1992, the court considered indemnity principles, proportionality, complexity, and the parties’ reasonable expectations.

Because the motion raised novel issues that would ultimately be determined at trial and did not resolve the merits, the court fixed costs but ordered them payable in the cause.

Costs were set at $100,000 all-inclusive on a partial indemnity basis.

In a certified securities class action arising from a take‑over bid, the defendant law firm moved for summary judgment dismissing negligence and statutory misrepresentation claims.

The plaintiff alleged that a partner of the firm, who acted as counsel to the bidder and sat on its board, participated in preparing a take‑over circular containing misrepresentations contrary to s. 131 of the Securities Act.

The court held that there were genuine issues requiring a trial regarding whether the law firm owed a duty of care to shareholders who received and relied on the circular.

The court further held that the question of whether a law partnership could be vicariously liable under the Partnerships Act for a partner’s statutory liability as a corporate director should also proceed to trial.

Summary judgment was refused because the issues were novel and required a full factual record.

Following the dismissal of an action and related summary judgment proceedings, the successful defendants sought substantial partial indemnity costs against the plaintiffs.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure and assessed the reasonableness of the claimed fees, hourly rates, and the nature of work performed.

The court emphasized that costs awards should relate to steps authorized by the rules and excluded various client communications and strategic consultations that were not directly tied to procedural steps in the litigation.

Significant reductions were applied to certain categories of claimed work, including general preparation and work associated with abandoned or unnecessary motions.

The court ultimately fixed global cost awards payable by the plaintiffs to each set of defendants.

The plaintiffs purchased a property for development but later discovered erosion issues.

They sought legal advice from the moving defendants on whether they could terminate the transaction.

The moving defendants advised them to close the transaction and sue the real estate agents later.

The plaintiffs followed this advice, suffered a loss on resale, and sued multiple parties, including the moving defendants for professional negligence.

The moving defendants brought a motion for summary judgment.

The court dismissed the motion, finding that factual conflicts regarding the advice given and the absence of affidavit evidence from a second lawyer present at the meeting created genuine issues requiring a trial.

The plaintiffs sued the defendant law firm for professional negligence arising from advice given during a share purchase transaction.

The plaintiffs alleged the law firm failed to properly advise them on the risks associated with a pending wrongful dismissal lawsuit against the target company, resulting in a liability that exceeded the negotiated indemnity.

The defendant law firm moved for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiffs failed to establish a breach of the standard of care without expert evidence, and failed to prove that the alleged negligent advice caused their damages.

The appellant appealed a motion judge's decision refusing to permit the addition of lawyer defendants to a statement of claim.

The motion judge had determined the proposed claims were not tenable at law.

The Court of Appeal allowed the appeal, finding that the proposed fresh as amended statement of claim, which alleged the lawyers provided incorrect advice regarding a share repurchase and litigation exposure, disclosed a tenable cause of action.

The Court also noted the motion judge improperly engaged in an assessment of the merits rather than solely assessing whether the claims were tenable at law.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

The appellant appealed an order striking his claim for damages against his wife's lawyers in matrimonial proceedings.

The appellant alleged that his wife's share of the proceeds from the sale of the matrimonial home constituted trust funds, and that her lawyers were liable for knowing receipt of trust funds when they were paid from those proceeds.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the property in question was not impressed with a trust.

The applicants, former volunteer board members of a charity, were unsuccessful in their application to set aside an election.

The respondents sought substantial indemnity costs of nearly $100,000, including costs against the applicants' solicitor personally.

The court rejected the argument that the applicants' volunteer status immunized them from costs, but found the respondents' pre-litigation conduct warranted a reduction.

Costs were fixed on a partial indemnity scale at $30,000 plus disbursements, and the issue of the solicitor's personal liability was reserved.