A. Graham

The plaintiff brought a motion for a status hearing to show cause why its action, arising from condominium construction defects, should not be dismissed for delay under Rule 48.14.

The court found the plaintiff failed to provide an acceptable explanation for over three years of delay and failed to rebut the presumption of prejudice, as it did not provide evidence that all relevant documents and key engineering and contracting witnesses were available.

The action was dismissed for delay.

The plaintiff successfully moved to set aside a registrar's dismissal order.

The parties could not agree on costs, and the defendants sought partial indemnity costs of $5,949.49, arguing that the plaintiff was granted an indulgence.

The court found that while the plaintiff received an indulgence, the defendants' counsel contributed to the delay and prejudice by refusing to make a defendant available for discovery and failing to preserve evidence.

The court concluded that no costs should be payable on the motion.

The plaintiffs brought a motion for a status hearing to show cause why their consolidated action, originating from claims commenced between 2000 and 2007 regarding the defendants' management of mortgaged properties, should not be dismissed for delay under Rule 48.14.

The court found that the plaintiffs failed to provide an acceptable explanation for at least seven years of delay, largely stemming from their failure to properly scan and index property management documents.

Furthermore, the court found that the defendants would suffer actual prejudice due to the death and unavailability of key witnesses.

The action was dismissed for delay.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to show cause why their action should not be dismissed for delay.

The action arose from a construction mortgage dispute and was related to a separate Brampton action where the defendants had obtained summary judgment against the plaintiffs.

The Master found that the plaintiffs' involvement in the related action and the defendants' failure to serve a statement of defence provided an acceptable explanation for the delay.

The Master also found no non-compensable prejudice to the defendants and ordered that the action proceed.

The plaintiff brought a motion to compel answers to refusals and undertakings arising from an examination for discovery in an insurance coverage dispute following a parking garage collapse.

The defendant insurer resisted production of certain documents and adjuster notes on the basis of litigation privilege and solicitor‑client privilege.

The court determined that litigation privilege arose after an unequivocal threat of litigation made by the insured’s representative on July 20, 2010, and that documents created after that date were protected.

Several earlier communications reflecting legal advice from counsel were also protected by solicitor‑client privilege, while limited factual portions of adjuster notes were ordered produced.

The court partially required disclosure of non‑privileged factual information but otherwise upheld the insurer’s privilege claims.

The defendant insurer moved for an order that three related actions arising from a hotel parking garage collapse be tried together and transferred from Toronto to Kingston.

The actions included an insurance coverage claim and two negligence actions against contractors and engineers.

Applying Rule 6.01 of the Rules of Civil Procedure and the factors articulated in prior jurisprudence, the court held that the actions shared common issues of causation and overlapping damages evidence, such that trial together would avoid duplication of witnesses and inconsistent findings.

Although the insurance action was procedurally more advanced and delay in bringing the motion was noted, the efficiencies of a single trial outweighed the prejudice alleged by the plaintiff.

The court also found that Kingston was a significantly more appropriate venue under Rule 13.1.02 because the events, damages, subject property, and most parties were connected to Kingston.

The plaintiffs moved for consolidation of two franchise-related actions and for a trial together with a third action involving prior franchisees of the same restaurant.

The claims arose from alleged deficiencies in disclosure under the Arthur Wishart (Franchise Disclosure), 2000 Act in connection with the purchase and resale of the same Lick’s restaurant franchise.

The court held that the two actions involving the same plaintiffs and transaction should be consolidated because they shared common questions of fact and law and arose from the same purchase.

Applying Rule 6.01 of the Rules of Civil Procedure and factors governing trial together orders, the court also directed that the consolidated action be tried together with the earlier action involving prior franchisees due to overlapping evidence, witnesses, valuation issues, and risk of inconsistent findings.

The court further ordered common documentary and oral discovery, common mediation, and assigned the actions to case management.