Adam Dobkin

The appellant appealed an Associate Justice's decision dismissing a motion for production of two documents (a Statement of Work and final report prepared by Ernst & Young) that were referenced in an affidavit filed by a non-party representative.

The underlying dispute concerned whether Ernst & Young's acquisition-related records should be produced in a broader non-party production motion.

The Associate Justice declined to compel production of the two documents, finding that doing so would be improper and would unduly interfere with the orderly progress of the action by creating a risk of inconsistent findings between the refusals motion and the main motion.

The appeal court upheld this decision, finding no palpable and overriding error in the Associate Justice's discretionary determination that the requests were improper, and that her consideration of fairness, proportionality, and the risk of inconsistent results was appropriate.

The plaintiffs, Vincent and Rosemary Tookenay, brought a motion to extend the time for service of their statement of claim in a medical malpractice action against the Estate of Dr. Michael O’Mahony and others, and to validate irregular service.

The statement of claim was issued in April 2021 but not properly served until January 2023, well beyond the six-month deadline.

The plaintiffs attributed the delay to a "miscommunication" within their lawyers' office.

The defendant Estate opposed the motion, arguing significant and uncompensable prejudice due to the unavailability of two key witnesses: Dr. O’Mahony, who suffered severe cognitive decline and later passed away, and nurse practitioner Melissa Georgiou, who died of cancer.

The court dismissed the plaintiffs' motion, finding an unexplained one-month delay after the plaintiffs' lawyers realized the claim had not been served, and actual prejudice to the defendant Estate due to the loss of crucial witness testimony.

This costs endorsement followed a partial success on appeal where the appellant, Justice of the Peace Lauzon, had her appeal from the merits decision dismissed but her appeal from the disposition decision allowed, resulting in a reprimand and 30-day suspension instead of removal from office.

While the parties agreed on costs for the appeal, Divisional Court, and leave motion, they disagreed on the costs of the original hearing before the Hearing Panel.

The appellant sought full reimbursement for these hearing costs, arguing her appeal success effectively overruled the reasons for their previous reduction.

The Court of Appeal dismissed this request, finding that the appellant had not sought leave to appeal the Divisional Court's decision on the Hearing Panel's costs recommendation, nor had she demonstrated any reversible error.

The court concluded that the partial success on appeal did not affect the reasonableness of the Hearing Panel's original costs recommendation, and therefore made no order regarding those costs.

The moving parties, subcontractors on a mining project, sought leave to intervene in an application brought by the project owners to set aside an arbitral award in favour of the general contractor.

The arbitral award included damages for the subcontractors' lost profits and standby charges.

The court dismissed the motion to intervene, finding that the subcontractors' financial interest in the outcome did not constitute a legal interest in the subject matter of the proceeding, which concerned the construction of the contracts between the owners and the general contractor.

The court also held that the subcontractors would not make a useful contribution to the issues on the application.