Associate Judge Barbara McAfee

The respondent moving party brought a motion under Rule 25.11 to strike out the applicant's application concerning a settlement agreement and rent arrears.

The court found that it was not plain and obvious that the application would fail, as it raised issues regarding the interpretation of a settlement agreement.

The motion to strike was dismissed.

The plaintiffs brought a motion for leave to examine a second representative of the corporate defendant in a slip-and-fall action.

The plaintiffs sought to examine the employee who prepares planograms after discovering the initial representative had limited knowledge of them.

The motion was dismissed, as the plaintiffs failed to demonstrate that the initial representative was unwilling or unable to inform himself, or that a second examination was necessary to obtain satisfactory answers.

The defendant brought a motion to remove the plaintiffs' lawyers of record due to a conflict of interest.

The plaintiffs' former counsel had obtained medical-legal reports from a company owned by her spouse without disclosing this relationship to the defendants.

Although the former counsel had been replaced, the new lawyers of record were from a successor firm operating out of the same office and employing lawyers from the former firm.

The court found that the conflict of interest had not been adequately addressed and that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required the removal of the current lawyers of record.

The motion was granted.

The plaintiff brought a motion for leave to amend his statement of claim and for the issuance of summonses to witness in an action against his bank regarding a credit card dispute.

The court dismissed the motion to amend, finding that the proposed amendments pleaded fundamentally different facts and a new cause of action after the expiry of the presumptive limitation period, which constitutes non-compensable prejudice.

The court also dismissed the request for summonses as no trial had been scheduled.

Costs of $5,000 were awarded to the defendant.

The plaintiff brought a motion to set aside a registrar's order dismissing its action for delay.

The underlying action concerned an insurance claim for an equipment failure.

The court applied a contextual approach, noting that while some periods of delay were unexplained, the plaintiff did not intend to abandon the action, moved promptly to set aside the dismissal once discovered, and the defendants suffered no actual prejudice.

The motion was granted, the dismissal order was set aside, and a timetable was established for mediation and setting the action down for trial.

The applicant brought a motion for a certificate of pending litigation (CPL) against three properties, alleging that his brother and other family members fraudulently transferred a property held in trust and used the mortgage funds to purchase two other properties.

The court found a triable issue regarding the applicant's interest in two of the properties based on a written trust agreement and the respondents' failure to answer undertakings regarding the use of mortgage funds.

The court granted the CPL for those two properties but dismissed the motion regarding the third property because it was co-owned by non-parties who had not received notice.

The defendant moved to set aside a default judgment and a Registrar's dismissal order for delay.

The plaintiff had obtained default judgment after serving the statement of claim by substitute service to addresses where the defendant did not reside.

The defendant discovered the judgment years later when selling a property and paying off a writ of execution.

The court found the default judgment was irregularly obtained because the defendant never received the claim.

Alternatively, the court held it was in the interests of justice to set aside the judgment, as the defendant had an arguable defence of forgery.

The default judgment, noting in default, and dismissal order were set aside, and the plaintiff was ordered to pay the writ discharge funds into court.

The plaintiffs (defendants to the counterclaim) brought a motion for security for costs against one of the defendants (plaintiff by counterclaim), a foreign corporation resident in China.

The court found that while the corporate defendant was ordinarily resident outside Ontario, an order for security for costs would be unjust.

The court held that the counterclaim was closely connected to the main action and substantially served as a defence to the plaintiffs' claims regarding a construction contract and settlement agreement.

The motion was dismissed with costs awarded to the defendants.

The plaintiff and defendant each brought motions to compel answers to undertakings and refusals from examinations for discovery in a construction contract dispute.

The court ordered the defendant to provide particulars of its damages claim, finding its previous answers insufficient.

The court dismissed the defendant's motion, finding the plaintiff had either answered the undertakings or made best efforts to locate the requested documents.

Costs of $5,000 were awarded to the plaintiff.

The plaintiffs brought a motion to strike the defendants' amended statement of defence, alleging a continuing pattern of disruptive conduct at examinations for discovery, breaches of court orders, certificates of non-attendance, failure to produce documents, potential spoliation, and failure to answer undertakings and refusals.

The court examined each ground individually and collectively, finding that the defendants' conduct, while imperfect, did not rise to the extraordinary level warranting the striking of pleadings.

The motion to strike was dismissed.

The defendants were awarded partial indemnity costs of $7,500 payable in the cause.

This is a medical malpractice action arising from the death of Maria Patria Asajar on January 22, 2014, following alleged misdiagnosis and delay in treatment of an aortic dissection at North York General Hospital.

The plaintiffs brought a motion for a status hearing under Rule 48.14(6) of the Rules of Civil Procedure after the action had not been set down for trial within the prescribed timeframe.

The defendants opposed, arguing the action should be dismissed for delay.

The court found that the plaintiffs provided an acceptable explanation for the delay and that there was no non-compensable prejudice to the defendants.

The action was permitted to proceed with new mediation and trial-setting deadlines.

The Bank of Nova Scotia brought a motion for leave to issue a writ of possession for a mortgaged property, following a 2015 judgment in its favour.

Louis and Effie Kakoutis, the plaintiffs and defendants to the counterclaim, opposed the motion.

The court reviewed the history of litigation, including prior actions, appeals, and a failed mediated settlement.

The court found that all persons in possession had received sufficient notice and that the requirements of the Rules of Civil Procedure were met.

The court granted leave to issue the writ of possession and ordered that, for seven months, service on the Kakoutises be at their new address.

No costs were awarded for the motion.

Two non-party claimants brought a motion seeking an order for the payment out of court of $618,360.20 plus accrued interest.

The claimants relied on Rule 43.04(2) and Rule 72.03 of the Rules of Civil Procedure.

Associate Justice McAfee dismissed the motion, finding that the relief was not properly sought under those rules and that the court lacked jurisdiction to determine entitlement to the funds on this motion.

Additionally, the court noted that the claimants failed to provide proper notice of the motion to other potentially interested parties.

The motion was dismissed without prejudice to the claimants bringing an appropriate application.

The defendants brought a motion to vacate a certificate of pending litigation (CPL) registered against their property, arguing the plaintiff failed to prosecute the action with reasonable diligence.

The underlying action involved a claim of fraudulent conveyance to avoid a foreign judgment.

The court dismissed the motion, finding that the plaintiff had satisfactorily explained any litigation delay, had set the action down for trial, and that discharging the CPL would severely prejudice the plaintiff while the defendants showed no evidence of prejudice.

The defendant City of Toronto brought a motion to dismiss the plaintiff's slip and fall action for delay under Rule 24.01(1)(b) and (c).

The plaintiff conceded the delay was inordinate but argued it was excusable due to lawyer inadvertence and a lawyer winding down their practice.

The court found the delay excusable, noting the plaintiff's consistent intent to proceed and that no delay was her fault.

The court also found no actual prejudice to the City, despite some employees having retired, as there was no evidence they could not be located or provide evidence.

The motion to dismiss was dismissed, and the action was ordered to be set down for trial by October 1, 2025, with no costs awarded.

The defendant brought a motion for answers to refusals and for further security for costs.

The refusals issue was resolved on consent.

On the issue of security for costs, it was undisputed that the plaintiff ordinarily resides in Vietnam.

The court found that the merits of the case were neutral due to credibility issues that could not be resolved on a motion.

As the plaintiff did not allege impecuniosity or prejudice, the court ordered the plaintiff to post further security for costs in the amount of $41,835.82.

The plaintiff, Meaghan McGuire, brought a motion for leave to amend her statement of claim to add CRH Canada Group Inc. C.O.B. Dufferin Construction Company as a defendant, following a slip and fall incident.

CRH opposed, arguing the claim was statute-barred due to an expired limitation period.

The court found that the plaintiff provided a reasonable explanation for the delayed discovery of CRH's involvement, noting the low evidentiary threshold for such motions.

The motion was granted, allowing CRH to plead a limitation period defence at a later stage (summary judgment or trial).

Costs were awarded to the plaintiff.

The defendants brought a motion to amend a previous order regarding a discovery plan and to remove a costs award against two individual defendants, Joseph Romano and Claudio Romano.

They argued that they failed to appear at the original motion due to insufficient notice, relying on Rule 37.14(1)(b) of the Rules of Civil Procedure.

The court granted the amendment to the discovery plan by consent.

However, the court dismissed the request to remove the costs order, finding that the moving defendants failed to provide sufficient evidence that their non-attendance at the original motion was due to insufficient notice, which is a precondition for relief under Rule 37.14(1)(b).

The court emphasized that a party who chooses not to appear cannot later complain about the outcome.

No costs were awarded for this motion.

The defendant Scottish & York Insurance Co. Limited brought a motion under Rule 26.01 to amend its statement of defence and, if necessary, under Rule 51.05 to withdraw an admission.

The plaintiff, Gordon Djuric, opposed, arguing the amendments constituted a withdrawal of an admission regarding OPCF 44R underinsured motorist coverage and would cause non-compensable prejudice, particularly affecting his accident benefits settlement.

The court found that the original statement of defence did not contain an unambiguous admission of OPCF 44R coverage.

Furthermore, the court determined that the alleged prejudice (denial of benefits the plaintiff may not have been entitled to) was not the type of non-compensable prejudice contemplated by Rule 26.01.

Leave to amend the statement of defence was granted, and costs were awarded to Scottish & York.

The plaintiff brought a motion for leave to amend its statement of claim and to compel answers to refusals from the defendant's examination for discovery in an action for repayment of disability benefits.

The defendant opposed the amendments, arguing they were barred by s. 36(3) of the Regulated Health Professions Act, 1991.

The court granted leave to amend, finding the amendments pleaded underlying facts rather than prohibited records.

The court also ordered the defendant to answer the refused questions regarding CPSO proceedings, financial records, and other litigation, with minor limitations.