Law Times

May 29, 2017

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OCA finds release covers unanticipated claim BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has ruled that a final release to settle an action covered an unanticipated claim that came to light years later. In Biancaniello v. DMCT LLP, the court dismissed decisions from a motions judge and the Divisional Court that found a client could sue an accounting firm for its work on a transaction despite a release that discharged the parties in a prior settlement. The Court of Appeal held that in signing the release, the parties intended to finally settle the dis- pute. "The language of the release covers all claims arising from the work the accountants did on the butterf ly transaction in 2007," Jus- tice Kathryn Feldman wrote in the decision. "The parties were wiping the slate clean in respect of that work. "Had the client wished to ex- clude claims it might later discov- er arising from that work, it could have bargained for that result." Lawyers say if the Divisional Court's ruling was left to stand, it could have had significant impli- cations on releases. Darlene Madott, of Darlene Madott PC, says the decision nailed down the practical reality of why people create releases, which is to wipe the slate clean with respect to a dispute between two parties. Madott was not involved in the case. "I think it would have made settlements in many cases so much more difficult, because people who are settling, those who are paying out will never feel insulated," Mad- ott says of the possibility that the Divisional Court decision was left to stand. "How do you protect against a future situation or one that arose out of the relationship?" The underlying dispute arose in a fee dispute in 2007 over more than $66,000 that accounting firm CHANGE LSUC NAME Law Society of Ontario proposed P7 FOCUS ON Criminal Law P8 See Decision, page 2 PM #40762529 $5.00 • Vol. 28, No.18 May 29, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M NEW TRIAL ORDERED Judge found to have created apprehension of bias P4 BY ALEX ROBINSON Law Times A n appeals panel has or- dered the Law Society of Upper Canada to dis- close privileged informa- tion in a long-running disciplinary proceeding against a lawyer. In a recent decision, Law Soci- ety of Upper Canada v. Savone, the law society's hearing tribunal division determined the regulator must produce documents it had identified as privileged that could be relevant to its proceedings against Ottawa real estate lawyer Luigi Savone. But the panel stopped short of forcing the law society to disclose internal communications about its investigation into Savone, who is facing allegations of misconduct related to 12 real estate transac- tions that occurred between 2000 and 2003. Last year, the Divisional Court ruled that a law society hearing panel had erred when it refused to disclose certain files that could have been relevant to the proceed- ings. The files in question were those of lawyers who had represented purchasers in the allegedly fraudu- lent transactions. Savone had rep- resented the vendor. The law society disclosed some information from the relevant files last summer after the Divisional Court decision, but it refused to disclose information it identified as privileged. "It's important to consider that the law society has obligations to disclose and privilege can't always be claimed in order to shield infor- mation that would otherwise be of relevance and benefit to a per- son before a tribunal," says Joseph Neuberger, of Neuberger & Part- ners LLP, who was not involved in the proceedings. "Not everybody will be in the same circumstances as this gentle- man, but it certainly speaks well about greater transparency and greater disclosure so a person be- fore a tribunal will have a more ro- bust ability to defend themselves." Savone had asked that the law society either stay the proceed- ings for delay or that he be granted greater disclosure. The appeals panel refused to throw out the proceedings, but it granted disclo- sure of the privileged information. Lawyers say this is one of the See Tribunal, page 2 Daniel Naymark expects people facing delays in matters before administrative tribunals may soon turn to the courts system. Photo: Robin Kuniski LSUC must disclose privileged information Darlene Madott says a recent Ontario Court of Appeal decision nailed down the practical reality of why people create releases that discharge parties in prior settlements. Follow Contact Nicole Breakey 1-888-781-9083 ext. 117 E-mail: SCAN | CODE | LOAD ocudavit-EARLUG_LT_Apr24_17.indd 1 2017-04-20 7:54 AM Integrated Legal Marketing Solutions Put Your Digital Marketing Tactics into High Gear Untitled-3 1 2017-05-18 2:27 PM

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