Associate Judge Andrew Graham

The plaintiffs brought a motion to compel answers to questions refused during the examination for discovery of the defendant Rosy Moses.

The underlying litigation involves a family dispute over the ownership and control of corporate entities, with claims based on proprietary estoppel.

The motion addressed the relevance of questions concerning Rosy Moses's testamentary intentions, the production of accountant and will drafting files, and transfers of assets to Rachel Moses.

A significant portion of the motion also dealt with the inadvertent disclosure of a privileged document.

The court ruled on the relevance of various questions, compelling some answers related to asset equalization and family dynamics, while upholding refusals for others, particularly those concerning inadvertently disclosed privileged documents.

The court found a mixed success rate for both parties and ordered no costs.

The plaintiff requested a case conference to resolve a scheduling dispute for a mandatory mediation.

The mediator offered dates in late November, but the third party's counsel was only available starting December 11.

The court expressed exasperation at the parties' inability to resolve a two-week scheduling difference, directing them to agree to the December 11 date or face a case conference where a date would be summarily set and costs submissions heard.

The plaintiff brought a motion to compel production of financial documents from the defendant HouseSigma Inc. for the purpose of valuing shares in an oppression claim, arguing that the valuation date could be the date of trial.

HouseSigma Inc. resisted, arguing irrelevance and prejudice, and brought a cross-motion to compel the plaintiff to produce personal and corporate financial documents for wrongful dismissal damages and mitigation.

The court found the HouseSigma documents relevant for valuation and ordered production to the present.

The court also ordered the plaintiff to produce personal and corporate financial records from 2015-2018, finding them relevant to pre-employment income and mitigation of damages.

The defendants brought a motion for security for costs against the plaintiff, who was ordinarily resident outside Ontario (Lithuania) and claimed impecuniosity.

The court applied the two-stage test for security for costs under Rule 56.01(1)(a) and (e).

The plaintiff successfully demonstrated impecuniosity with robust particularity and showed that her personal injury claim, involving an objective shoulder fracture from a slip and fall on ice, was not clearly devoid of merit.

Consequently, the motion for security for costs was dismissed, and the defendants were ordered to pay the plaintiff's costs.

The plaintiffs moved to remove Minden Gross LLP as counsel for the defendant corporations, Metro Hardware and 218 Ontario, alleging that a partner in the firm, Rachel Moses (sister of plaintiff Reuben Moses), and other firm members would be necessary witnesses at trial, and that counsel displayed improperly partisan conduct.

The court dismissed the motion, finding no strict rule against a lawyer's partner testifying, that Rachel Moses did not intend to testify, and that the motion appeared tactical and was brought late in the proceedings.

The court emphasized the right to counsel of choice and that any potential conflict was speculative.

The respondent Chippewas of Nawash Unceded First Nation brought a motion to strike portions of affidavits filed by the respondent Troy James Hunter and the applicant Ontario Heritage Trust, arguing settlement privilege.

The motion arose from an underlying application by the Trust seeking removal of encroachments by Hunter on a sacred site co-managed by the Trust and Chippewas.

The court dismissed the motion, finding that Chippewas lacked standing to assert privilege over communications between the Trust and Hunter, and that the Trust had waived its own settlement privilege by disclosing and relying on settlement communications in both a prior regulatory proceeding and the current application.

The court emphasized that privilege issues should be decided by the motion judge, not deferred to the application judge.

The defendant, St. Paul Fire and Marine Insurance, moved for an order requiring the plaintiff, Mario Parravano, to post security for costs under Rule 56.01(1)(c) and (e).

The motion was based on Parravano's failure to pay over $310,000 in costs from two previous unsuccessful lawsuits against the same insurer, and the defendant's contention that the current action, claiming $60 million for bad faith, was frivolous and vexatious and statute-barred.

The court found the action could not succeed because the insurer's prior denials of claims had been determined meritorious by the Court of Appeal, precluding a bad faith finding.

Furthermore, the action was barred by both the two-year discoverability limitation period and the 15-year ultimate limitation period under the Limitations Act, 2002, as the plaintiff, having had legal counsel, ought to have known of the claim earlier.

The court granted the motion, ordering the plaintiff to post $220,000 in security for costs in installments and pay the defendant's motion costs.

This endorsement details a reference hearing conducted by an Associate Justice following a motion for judicial sale of the defendant's property.

The plaintiff, Royal Bank of Canada, had obtained a default judgment against the defendant for unpaid loan and credit card amounts.

The Associate Justice was tasked with inquiring into and determining specific issues as a prerequisite to a judicial sale order, including the defendant's interest in the property, binding judgments and writs of execution, priorities among creditors, reasons against sale, and distribution of proceeds.

The defendant did not appear despite proper service.

The Associate Justice made findings on all stipulated issues, confirming the defendant's joint tenancy with his spouse, the priority of a registered charge, and the pro rata distribution among execution creditors under the Creditors Relief Act.

The Associate Justice clarified that their role was to report findings to the directing judge (Justice Vella), as they did not have the jurisdiction to order the judicial sale itself.

The defendants moved for an order requiring the plaintiffs to post security for costs.

The plaintiffs, a Ukrainian national residing abroad and a British Virgin Islands corporation with no Ontario assets, argued that Mr. Spektor's shares in Black Iron Inc. (BKI) were sufficient assets and that the defendants' wealth and a forum selection clause should negate or reduce the security.

The court found the BKI shares too volatile and illiquid due to the war in Ukraine and trading volume to serve as sufficient security.

It rejected arguments based on the forum selection clause and the defendants' affluence, distinguishing the case from Yaiguaje.

The motion for security for costs was granted, with the plaintiffs ordered to post $270,000 in installments, a reduction from the $318,000 sought, primarily due to the counterclaim.

The defendant, Dr. Philip Ricciardi, brought a motion to prohibit Brian Ludmer from acting as counsel for the plaintiffs, Jefferson Wiggins et al., in a professional negligence action.

The defendant argued that Mr. Ludmer, having extensively interacted with Dr. Ricciardi as the plaintiff's previous family law counsel, would inevitably be a witness or rely on personal knowledge, creating a conflict of interest under the witness-advocate rule.

The defendant also raised a potential conflict regarding the limitation period defence.

The court granted the motion to prohibit Mr. Ludmer from acting due to the witness-advocate conflict, finding that his questioning would imply an 'unsworn offer of the lawyer’s version of the facts.' However, the court dismissed the limitation period conflict argument, as the plaintiff waived any claim against Mr. Ludmer.

The plaintiffs, purchasers of condominium units, sought a Certificate of Pending Litigation (CPL) against the project lands after rescinding their Agreements of Purchase and Sale (APSs) under the Condominium Act and demanding the return of their deposits.

The defendants refused, relying on terms in prior Reservation Agreements.

The court found a triable issue regarding the plaintiffs' claim to a constructive trust in the lands, given the defendants' use of deposit funds and uncertain solvency.

The court also determined that the APS clause prohibiting registration did not bar the CPL, as the rescission rendered the APS void and the CPL was sought on constructive trust grounds.

The motion for a CPL was granted.

The defendant, State Farm, brought a motion to compel the plaintiff, Lynnette Dalton James, to attend a defence psychological examination in Mississauga.

The plaintiff agreed to the examination but requested it be held in Markham, where she resides, or by videoconference, citing vehicular anxiety and pain stemming from a motor vehicle accident.

The court, applying principles for determining the location of defence medical examinations, found that the plaintiff's choice of location was reasonable given her diagnosed Posttraumatic Stress Disorder with vehicular anxiety/avoidance.

The defendant failed to demonstrate why the examination could not be conducted at the more convenient Markham location.

The motion to compel attendance in Mississauga was dismissed, and the plaintiff was ordered to attend the examination in Markham or by videoconference.

The plaintiff's separate request for leave to set the action down for trial before mandatory mediation was refused.

The plaintiff brought a motion for further documentary production from the defendant and from a non-party, her former employer AB Sciex Ltd. The plaintiff sought the defendant's unredacted bank statement to corroborate a past romantic relationship, which the defendant agreed to produce.

The plaintiff also sought HR records and video footage from the non-party employer relating to harassment complaints made by the defendant and the termination of her employment.

The court ordered the non-party to produce records of the harassment investigations and correspondence regarding the plaintiff's termination, finding them relevant to her claims of malicious prosecution and intentional infliction of mental distress, but dismissed the requests for other HR records and video footage.

The plaintiff in a passing off action brought a motion for further production of the defendant's documents, including financial statements, tax returns, sales records, and website traffic data, to assist its expert in calculating damages.

The court granted the motion in part, ordering the production of the defendant's financial statements and general ledgers, subject to redactions for relevance and commercial sensitivity.

The court denied the requests for tax returns, monthly sales totals, salary details, sales forecasts, and website traffic data, finding that the plaintiff failed to establish their relevance or existence.

The court also granted the plaintiff leave to amend its statement of claim and extended the time to set the action down for trial.

The plaintiff, a former managing director at the defendant bank, brought a motion to amend his statement of claim in a wrongful dismissal action.

He sought to add claims for unjust enrichment and disgorgement of profits, alleging the bank earned investment income on his withheld incentive compensation.

The court dismissed the motion, finding that the proposed amendments disclosed no reasonable cause of action.

The court held that the unjust enrichment claim failed because there was no corresponding deprivation to the plaintiff, and the disgorgement claim failed because damages for breach of contract were an adequate remedy.

The plaintiff brought a motion to examine representatives of two non-party corporate shareholders (Lake and JLA) under Rule 31.03(8), arguing the action was being defended for their immediate benefit due to an indemnification agreement and litigation accrual fund.

The plaintiff also sought a further and better affidavit of documents.

The court found that the non-parties had a direct financial interest in the outcome and were beneficial parties.

The court ordered the examinations of the non-parties' principals, limited to 10 hours total, and ordered the defendant to serve a further and better affidavit of documents.

The Ouyang defendants brought a motion for security for costs against the plaintiff under Rules 56.01(1)(a) and (e) of the Rules of Civil Procedure.

The court found that the defendants failed to prove the plaintiff resided outside Ontario under subrule (a).

However, under subrule (e), the court determined the plaintiff's claim against the Ouyang defendants appeared frivolous and vexatious, as the loan agreement was with a non-party corporation and guaranteed by another defendant, with no legal basis for the Ouyang defendants' liability.

The court also found insufficient evidence of the plaintiff's assets in Ontario.

The motion was granted, and the plaintiff was ordered to post $25,000 in security for costs.

The defendant, a real estate lawyer, brought a motion to remove the plaintiff's counsel of record.

The defendant argued that he had previously consulted the plaintiff's counsel regarding the very mortgage transactions at issue in the litigation, imparting confidential information.

Furthermore, the defendant argued that the plaintiff's counsel would likely be a necessary witness at trial regarding the plaintiff's efforts to mitigate damages in a related mortgage enforcement action.

The court applied the MacDonald Estate test for conflicts of interest and the Essa factors for lawyers as witnesses.

The court found that the plaintiff's counsel had a disqualifying conflict of interest and was also likely to be a witness at trial.

The motion to remove counsel was granted.

The plaintiff brought a motion to amend her statement of claim, which the defendant partially opposed.

The court granted leave to amend the statement of claim, allowing most proposed changes to provide context for existing claims, but disallowed irrelevant or inflammatory passages, including details related to Human Rights Tribunal proceedings and characterizations of the defendant.

The action was ordered to proceed under Simplified Procedure.

The plaintiff was ordered to pay costs thrown away to the defendant, but no costs were awarded for the motion itself.

The plaintiff, Mitchell Worsoff, commenced an action against a condominium corporation and its manager, alleging oppressive conduct regarding renovation requirements during the COVID-19 pandemic.

The plaintiff later discontinued the action.

Both parties moved for costs of the discontinued action.

The court found that the plaintiff did not have an objectively reasonable basis to commence the action, as the defendants' policies were reasonable and applied equally to other unit owners.

However, the court also found that the defendants failed to promptly disclose relevant renovation agreements, which prolonged the litigation.

Consequently, the plaintiff's motion for costs was dismissed, and the defendants were awarded 75% of their partial indemnity costs, fixed at $21,000.00, due to the disclosure failure.