Adam Romain

The defendants appealed an Associate Judge's order regarding discovery issues and a subsequent costs decision.

The underlying motion dealt with time limits for further examinations for discovery, refusals, and undertakings in an action involving allegations of malicious prosecution and bad faith.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error in the Associate Judge's application of Rule 31.05.1 to extend discovery time limits or in ordering the defendants to reattend at their own expense due to improper refusals.

Leave to appeal the $100,000 partial indemnity costs award was also denied, as the defendants failed to demonstrate an error in principle or that the costs decision was plainly wrong.

The appellants sought to adjourn their appeal of an associate judge's ruling on undertakings and refusals due to the unavailability of their lead counsel.

The appellants also sought to file transcripts of the multi-day hearing before the associate judge, which the respondent opposed.

The court granted the adjournment, setting a peremptory date for the appeal.

However, the court denied the request to file transcripts, noting they were unnecessary as they contained only legal arguments and the appellants had not referenced them in their factum.

The court also directed the parties to settle the underlying order with the associate judge.

The plaintiff sought costs following a successful motion regarding 166 undertakings and refusals from the defendants' discoveries.

The plaintiff claimed $228,395.58 on a substantial indemnity basis, citing the defendants' conduct, including delayed disclosure and excessive refusals.

The court declined to award substantial indemnity costs, finding the conduct did not rise to the level of scandalous or reprehensible behavior.

Applying the principle of what is fair and reasonable for the unsuccessful party to pay, the court fixed partial indemnity costs at $100,000, payable jointly by the TTC Defendants.

The plaintiff brought a motion to resolve numerous undertakings and refusals from the discoveries of the defendants, and to seek leave to extend the time limits for further discoveries.

The court ruled on dozens of specific refusals and undertakings, ordering the defendants to answer the majority of them.

Applying the factors under Rule 31.05.1(2), the court granted the plaintiff an additional 26 hours to discover the defendants, noting the complexity of the case, the financial imbalance between the parties, and the defendants' conduct during initial discoveries.

The court also ordered three of the defendants to reattend at their own expense pursuant to Rule 34.15(1)(a) due to the large volume of improper refusals.

The accused brought an application for a stay of proceedings, arguing that his right to a trial within a reasonable time under s. 11(b) of the Charter was violated.

The total delay to the expected time of trial was approximately 61 months.

The court applied the Jordan framework and deducted periods of defence delay and exceptional circumstances, including the COVID-19 pandemic, the complainant's pregnancy, a judge's illness, and a mistrial caused primarily by the Crown's failure to provide notice regarding a s. 276 issue.

The net delay was calculated at 23 months, well below the 30-month presumptive ceiling.

The application was dismissed.

Following a successful motion by the defendants to strike the plaintiff's statement of claim, the court determined the appropriate quantum of costs.

The defendants sought substantial indemnity costs of approximately $230,000, arguing that the plaintiff's unproven allegations of fraud justified an elevated award.

The plaintiff argued for partial indemnity costs of approximately $39,000.

The court agreed that unproven fraud allegations warrant higher costs, but found the defendants' claim excessive, particularly the $40,000 spent preparing brief costs submissions.

Costs were fixed at $200,000 all-inclusive.

The defendant Atrium brought a motion to amend its Statement of Defence and Crossclaim and to withdraw admissions made during pre-trial conferences regarding causation and the condition of the stairs where the plaintiff slipped and fell.

The plaintiff brought a cross-motion for judgment based on those admissions.

The court found that Atrium had made clear, binding admissions that the condition of the stairs caused the fall and that there was a breach of the standard of care.

Applying the three-part test for withdrawing admissions under Rule 51.05, the court denied Atrium's request because it failed to provide a reasonable explanation for the withdrawal.

The plaintiff's cross-motion for judgment under Rule 51.06(2) was also dismissed because the core issue of which defendant was the 'occupier' remained undetermined.