Andrew Graham

The defendant moved to dismiss the plaintiffs' 2003 franchise dispute action for delay under Rule 24.01(1)(e), and the plaintiffs brought a cross-motion to restore the action to the trial list.

The court found a period of inordinate and unexplained delay, largely attributable to the plaintiffs' former counsel's neglect.

However, the court also found that the delay caused actual prejudice to the defendant, as key executives involved in the franchise negotiations had left the company during the delay period, creating a substantial risk that a fair trial was no longer possible.

The defendant's motion was granted and the action was dismissed.

The plaintiff moved for relief from the deemed undertaking rule to permit use of discovery evidence outside the civil proceedings, both to make a securities-regulatory complaint against one defendant and to report alleged perjury by another defendant to police and Crown counsel.

Applying the exceptional-circumstances and superior-public-interest framework from Juman v. Doucette, the court held that relief from the undertaking requires a sufficient evidentiary record, including the relevant documents or transcripts, to support at least a prima facie case.

The evidence relating to alleged securities violations was speculative and unsupported by the actual records said to substantiate the misconduct.

The evidence relating to alleged perjury consisted of improper affidavit assertions without the underlying transcripts or documentary contradictions.

The motion was dismissed in its entirety.

The defendants moved to stay an Ontario action alleging breach of contract and misrepresentation arising from an agreement to establish a Toronto accounting business operation.

Applying the forum non conveniens framework, the court held that British Columbia was the clearly more appropriate forum given the parallel action already commenced there, the risk of conflicting judgments, and a non-exclusive forum selection clause consenting to British Columbia jurisdiction for disputes under the agreement.

Although the parties and witnesses were divided between Ontario and British Columbia, the need for a single proceeding to resolve identical factual issues outweighed those considerations.

The Ontario action was stayed and the defendants received partial indemnity costs.

The plaintiff, who was wrongfully convicted of murder and later acquitted, brought an action against police officers and the Attorney General for malicious prosecution and negligence.

The plaintiff moved to amend his statement of claim to add allegations of negligence against Crown attorneys for failing to disclose evidence.

The court dismissed the motion with respect to the negligence claims, holding that Crown attorneys are immune from civil suits based in negligence, and that the only tenable cause of action against them is for malicious prosecution.

In an aviation insurance dispute arising from an aircraft crash, the defendants sought production of documents from the Transportation Safety Board (TSB) under Rule 30.10 of the Rules of Civil Procedure and provisions of the Canadian Transportation Accident Investigation and Safety Board Act.

The court considered whether statutory privileges over cockpit voice recordings, statements to investigators, and representations made regarding draft TSB reports could be overridden.

Applying the statutory balancing tests, the court ordered production of the cockpit voice recorder recordings and certain factual documents where the public interest in the proper administration of justice outweighed the privilege.

Statements given to investigators for aviation safety purposes were largely protected, and representations regarding the TSB draft report remained absolutely privileged.

The flight data recorder information was ordered produced as it was not covered by statutory privilege.

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 brought a motion to set aside a default judgment obtained in an action arising from a short-term mortgage loan.

Applying the test from HSBC Securities (Canada) Inc. v. Firestar Capital Management Corp., the court considered whether the motion was brought without delay, whether the default was adequately explained, and whether the defendant had an arguable defence on the merits.

The court found the defendant acted promptly and reasonably explained the default.

Most proposed defences lacked merit, but a genuine issue for trial existed regarding undisclosed deductions from the mortgage funds totalling $2,498.25 that could support a defence of duress or unconscionability.

The default judgment was therefore partially set aside only with respect to that amount and associated interest.

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.

Multiple defendants brought motions seeking the appointment of a litigation guardian for a self‑represented plaintiff pursuing four personal injury actions.

The court considered medical evidence from a psychiatrist assessing the plaintiff’s mental capacity under s. 6 of the Substitute Decisions Act, 1992 and Rules 7.01 and 7.04 of the Rules of Civil Procedure.

The expert concluded that the plaintiff suffered from a delusional disorder and was unable to understand information relevant to litigation decisions or appreciate the reasonably foreseeable consequences of those decisions.

The court found the plaintiff’s expectations of recovering approximately $26.9 million in damages to be grossly unrealistic and indicative of an inability to make rational litigation decisions.

On a balance of probabilities, the court determined the plaintiff was mentally incapable in respect of the litigation and required a litigation guardian.

The plaintiffs moved under Rule 48.11 of the Rules of Civil Procedure to restore an action to the trial list after it had been struck from the list for several years, while the defendants brought a cross‑motion to dismiss the action for delay.

Applying the conjunctive test articulated by the Court of Appeal in Nissar v. Toronto Transit Commission, the court held that the plaintiffs bore the burden of providing an acceptable explanation for the litigation delay and demonstrating that the defendants would suffer no non‑compensable prejudice if the action proceeded.

The plaintiffs argued that related litigation justified holding the matter in abeyance, but the court found no evidence that opposing counsel had been informed of such an intention and concluded the action had effectively been neglected for nearly four years.

Although the court found that the defendants had not established actual prejudice, the plaintiffs failed to satisfy the first branch of the Nissar test.

The motion to restore the action to the trial list was therefore dismissed.

The plaintiff brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking orders that her former solicitors personally repay legal fees and indemnify her for costs incurred following the dismissal of her action for delay.

The lawyers admitted responsibility for significant delays that contributed to the dismissal.

The court considered the principles governing personal costs orders against lawyers, emphasizing that such orders must be made sparingly and only in clear cases.

Given the clear admissions of delay and the direct connection between that delay and the costs consequences faced by the plaintiff, the court exercised its discretion to require the lawyers to pay the defendants’ costs of the dismissed action and to reimburse the plaintiff for certain costs awards.

The court declined to order repayment of legal fees, leaving issues of negligence and causation to be determined in a separate solicitor’s negligence action.

Following dismissal of a motion brought by a defendant, the court addressed the costs of the motion.

The responding parties sought partial indemnity costs, including a substantial claim by certain defendants who had not delivered a costs outline at the hearing as required by Rule 57.01(6) of the Rules of Civil Procedure.

The court held that failure to provide a costs outline does not automatically bar recovery of costs because s.131(1) of the Courts of Justice Act preserves judicial discretion.

However, the absence of a timely costs outline and the excessive amount claimed justified a significant reduction.

The court fixed costs payable to one set of defendants at $4,000 and to the plaintiff at $2,500.

The defendants brought a motion under Rule 33.02(1) of the Rules of Civil Procedure to determine the location of a defence medical examination of the plaintiff.

The plaintiff opposed travelling from Toronto to Hamilton due to discomfort with unfamiliar surroundings and the need to care for her adult daughter with disabilities who required constant supervision and medication.

The court held that defendants have a prima facie right to select the examining physician and that the modest additional travel time did not justify overriding that right.

Concerns regarding the plaintiff’s daughter were addressed by requiring the defendants to provide transportation and permitting the daughter to remain in the examination room.

The motion was granted with conditions and costs awarded to the defendants.

At a contested status hearing, the defendant sought dismissal of the plaintiff’s action for delay.

The action alleged breach of contract and negligence arising from the defendant’s failure to publish advertisements in telephone directories.

Applying the test from appellate authority, the court considered whether the plaintiff provided an acceptable explanation for the delay and whether the defendant would suffer non‑compensable prejudice if the action proceeded.

The court held that explanations including lack of communication from defence counsel, internal file management failures, and the absence of an external client were not reasonable explanations for over two years of inactivity.

As the plaintiff failed to provide an acceptable explanation for the litigation delay and did not fully establish absence of prejudice, the action was dismissed.

The plaintiff landlord brought a motion under Rule 5.04 to add a newly incorporated company as a defendant, alleging it received assets, business opportunities, and benefits through fraudulent conveyances after the tenant abandoned leased premises.

The proposed defendant argued that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that the presumption of discovery under s. 5(2) was rebutted because the proposed defendant corporation did not exist at the time of the underlying events.

Given uncertainty regarding when transfers occurred and when the plaintiff could reasonably have discovered the claim, the court found a triable issue of discoverability.

Leave was therefore granted to add the corporation as a defendant with permission to plead a limitations defence.

The moving defendants sought dismissal of an action after the plaintiff failed to diligently pursue litigation that had been struck from the trial list.

The court considered whether the plaintiff’s motion to restore the action should be dismissed due to delay under the test articulated in prior jurisprudence.

The court found a total delay of approximately 4.5 years, including failure to follow up with the court, failure to comply with prior court orders regarding undertakings, and prolonged inaction following cross-examinations.

The delay was found to be intentional and contumelious, and also inordinate and inexcusable, giving rise to a presumption of prejudice which the plaintiff failed to rebut.

The motion to restore the action and the action itself were dismissed.

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagor and guarantor for the balance owing on a mortgage and for dismissal of the defendants' counterclaim.

The defendants failed to file responding materials on time or submit to cross-examination.

The Master granted summary judgment for the plaintiff on the main action for $102,353.27, finding no genuine issue requiring a trial.

The Master also dismissed the defendants' counterclaim for breach of fiduciary duty but declined to dismiss the remaining counterclaims for trespass and vandalism, finding the plaintiff's evidence insufficient to refute those specific allegations.

The plaintiff brought a motion concerning the order of examinations for discovery in a personal injury action arising from a residential elevator failure.

The defendants argued they were entitled to examine the plaintiff first because they had served sworn affidavits of documents before the plaintiff.

The court held that the parties had, by their conduct and correspondence, agreed to a discovery plan under Rule 29.1.03 of the Rules of Civil Procedure that scheduled examinations of the defendants before the plaintiff.

Such agreement constituted “agreeing otherwise” within the meaning of Rule 31.04, superseding the default rule governing the order of discovery.

The court ordered that examinations proceed according to the discovery plan and also addressed ancillary document production issues.

The plaintiff moved to amend her statement of claim to add a claim for unidentified motorist coverage against the defendant insurer.

However, the plaintiff had previously brought a motion for the same relief in 2005 and delivered a notice of abandonment.

The court held that an abandoned motion cannot be revived absent inadvertence, mistake, misapprehension, or compelling special circumstances.

Finding no such circumstances, the court dismissed the motion to withdraw the notice of abandonment, thereby dismissing the motion to amend the statement of claim.