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 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 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.

This motion concerned a dispute over litigation privilege regarding handwritten notes made by the plaintiffs' representative on an email from the defendant's counsel.

The plaintiffs claimed privilege, arguing the notes were made in contemplation of litigation.

The court found that the plaintiffs failed to meet the onus to establish that the notes were created for the dominant purpose of reasonably contemplated litigation, as there was no direct evidence from the note-taker regarding his state of mind.

Consequently, the claim of privilege failed, and the plaintiffs were ordered to produce the notes.

The plaintiffs brought a motion for a status hearing to extend the deadline for setting their action down for trial, which was facing administrative dismissal for delay under Rule 48.14(1).

The significant delay of 3.5 years was attributed to a series of associate lawyers at the plaintiffs' firm failing to advance the file.

The defendants opposed the extension, arguing the explanation for delay was inadequate, but conceded they suffered no actual prejudice.

The court, applying the two-part test from Faris v. Eftimovski and considering its overriding discretion, found that despite the uncompelling explanation for counsel's delay, the action should proceed given the plaintiffs were not at fault and the defendants suffered no non-compensable prejudice.

The motion was granted, extending the deadline, and the plaintiffs were ordered to pay the defendants' costs.

The plaintiff moved to strike a Rule 39.03 summons to witness issued by the defendant Western Life Assurance Company, seeking to examine the plaintiff's legal assistant, who is also his sister.

The defendant sought to examine the legal assistant regarding the plaintiff's knowledge of his disability claim obligations and the limitation period.

The court found that communications with the legal assistant were protected by solicitor-client privilege and that the defendant failed to demonstrate the "high materiality and necessity" required to compel her testimony, nor was there a clear waiver of privilege.

The motion to strike the summons was granted.

The defendants moved for security for costs against the plaintiff, Forvest Financial Services Corporation, an assignee of a claim from a Swiss corporation.

The motion was brought under Rule 56.01(1)(d), alleging Forvest had insufficient assets in Ontario to pay costs.

The court applied the two-stage test from Hallum and Yaiguaje, considering all evidence, including the plaintiff's own financial disclosures.

The Master found that Forvest's assets, primarily "advances to related parties," were sheltered from execution and insufficient.

While the plaintiff demonstrated a good case on the merits regarding misappropriation of funds, a critical credibility issue concerning a limitation period argument prevented a finding of "good chance of success." No unreasonable delay was found on the defendants' part.

The court ordered Forvest to post security for costs, reducing the quantum to exclude mediation costs due to the defendants' bad faith participation and costs related to their counterclaim.

The defendants moved to dismiss the plaintiff's action for delay under Rule 24.01(1)(c), arguing the plaintiff failed to set the action down for trial within six months of the close of pleadings.

The court found an inordinate and inexcusable 2.5-year delay.

This delay resulted in substantial prejudice to the defendants' ability to defend the action due to the death of Albert Gilbert, a crucial witness whose oral promises formed the basis of the plaintiff's claim.

The motion was granted, and the action was dismissed.

The defendants, a condominium corporation and an individual, brought a motion to replace the plaintiffs' chosen corporate discovery representative, Edgar Arabian, with Senthuran Krishnakulasingham (SK).

The defendants argued SK was more knowledgeable and Arabian had a conflict of interest.

The plaintiffs opposed, asserting Arabian's sufficient knowledge, absence of conflict, and SK's ineligibility as a former director whose answers would not bind the corporation.

The court dismissed the motion, finding Arabian had sufficient knowledge despite SK potentially being more knowledgeable on some issues.

The alleged conflict of interest was not substantiated as the information shared by Arabian was legitimately available to unit owners.

Crucially, SK was deemed ineligible because, as a former director, his counsel admitted his answers would not bind the corporation, rendering his examination ineffective.

The plaintiff moved to set aside a registrar's dismissal order for delay in a personal injury action.

The court applied the four-factor test from Habib v. Mucaj and Reid v. Dow Corning Corp., finding that while there were periods of unexplained delay attributable to counsel, the plaintiff himself was not at fault.

Crucially, the prejudice to the defendants due to a defendant's terminal illness was not solely attributable to the plaintiff's counsel's delay, as defendants' counsel also contributed to the delay and failed to mitigate prejudice by preserving evidence under Rule 36.01.

The motion was granted, and the dismissal order was set aside, with the action to be set down for trial by a specified date.