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Legal Blog:
Aug
14
2017
Client Duties
York Condo No. 890 v. Hendler 2017 Ont SCJ
A law firm moved to assess its legal fees against a condominium. The condominium then brought an action framed in negligence alleging faulty advice. In effect, the action was a setoff claim against law firm’s’ fees. The law firm represented itself in the action and brought a summary judgment motion. The lawyer in charge sworn an affidavit in that motion. The condominium then moved to remove the law firm as lawyers of record in the condominium’s action against the law firm. The judge noted that the law firm could represent itself, just as any other entity can represent itself; the actual lawyer would simply have to put on street clothes rather than a barrister’s gown. However, the judge felt that this would not be necessary. He held that this was merely a dispute over fees and that this type of relationship between a testifying lawyer and the law firm client does not jeopardise the fairness of the proceedings. There is nothing particularly unjust about a law firm defending its own economic interest.
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14
2017
Solicitors’ Negligence
Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP 2017 Ont CA
Trial judge found that law firm breached its retainer, which had given rise to a bright line conflict or, at minimum, a substantial risk of conflict. The law firm had not disclosed to its clients that it had a retainer with another party that would result in a refusal to act for the first party if the law firm felt that there was a conflict. The trial judge found that had the clients been properly represented, they would have had a 55% chance of successfully negotiating with a third party for a substantial increase in the compensation paid to the clients. The massive decision deals with fiduciary duty; negligence; standard of care and expert evidence; contract interpretation of the retainer; limited retainers; contract interpretation (Sattva) and the relevance of surrounding circumstances that occur before the contract and, if the contract is still ambiguous, that occur after the contract; conflict of interest; causation; and the doctrine of loss of chance in both contract and tort (which differ).
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14
2017
Settlement and Costs
Muskala v. Sitarski 2017 Ont SCJ
The plaintiff brought a motion for production of information by the corporate defendants. The parties settled the motion other than costs. The parties then submitted their costs requests to a motions judge. The judge held that costs normally should not be awarded when parties settle; such a settlement is usually a settlement without costs. The main reason for the refusal was that it was difficult, if not impossible, to balance the factors under Rule 57.01 without having heard the facts and made a decision on the actual dispute. Further, costs are an incident to the determination of the rights of the parties and are not themselves supposed to be the subject matter of litigation. There might be exceptional cases in which costs would be justified, but this case was not one of them. Accordingly, if costs are important, an attendance is necessary and the parties cannot indicate that the matter has been “settled”. Note: this decision seems to apply just as much for a settlement of the action itself as it would for a motion.
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14
2017
Setting Down for Trial
Niagara Millwork Inc. v. Urbacon 2017 Ont SCJ (Master)
In Toronto, the normal practice for a construction lien action is to move for an order for a reference before a Construction Lien Master. However, a claimant may still choose the ordinary method for moving an action forward for ultimate trial by a judge. In this case, the plaintiff chose the ordinary method. It then decided to set the matter down for trial without discoveries. The defendant brought a motion to discover the plaintiff and the plaintiff then brought its own motion for discovery of the defendant. In each case, the parties needed leave, under section 67(2) of the Construction Lien Act, to bring the motion and in each case leave was granted. The Master granted leave because he determined that discoveries were necessary to provide particulars of the allegations of deficiencies and delay and could also lead to a resolution of some of the issues in dispute. The Master allowed the defendant’s motion, but denied the plaintiff’s motion. The plaintiff was precluded from its discovery by virtue of Rule 48.04(1) (i.e. once a party sets down a matter for trial, the party is deemed to have been prepared for trial and is not entitled to take a fresh step in the action). There was no substantial and unexpected change in circumstances; rather, the plaintiff simply changed its mind.
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