Associate Judge Barbara McAfee

The defendant brought a motion to dismiss the plaintiff's action for failure to answer undertakings and comply with a previous court order.

The plaintiff, who was self-represented, had answered some but not all of the undertakings, citing difficulties and costs in obtaining medical and other records.

The Master declined to dismiss the action but ordered the plaintiff to answer the sixteen outstanding undertakings within 30 days, providing specific directions for requesting records.

Costs of the motion were awarded to the defendant in the cause.

The plaintiffs brought a motion seeking an order extending the time for service of an amended statement of claim on several defendants, an order dispensing with or for substitute service on one defendant (Danny Grossi), and leave to amend the statement of claim to correct a misspelling.

The responding defendants opposed the extension of time for service.

The court granted the extension of time for service and leave to amend, finding no prejudice to the defendants.

The request for dispensing with or substitute service on Danny Grossi was dismissed without prejudice due to insufficient evidence regarding his current address or legal representation.

Costs were awarded to the responding defendants in the cause.

The plaintiff moved to add its founder back into the action as a plaintiff nunc pro tunc, arguing misnomer.

The founder had originally commenced the action in his own name but subsequently obtained an ex parte order substituting the corporate plaintiff for himself.

The court dismissed the motion, finding that the deliberate decision to substitute the parties meant the founder was not always the intended plaintiff, and thus the test for misnomer was not met.

However, the court granted leave to amend the statement of claim to add the founder as a plaintiff without prejudice to any limitation period defence, as agreed by the defendants.

The plaintiff, Scotia Mortgage Corporation, brought a motion for summary judgment seeking payment of amounts owing under a mortgage and possession of the property due to the defendant's default.

The defendant, Boris Broz, opposed the motion, raising issues regarding a late reply affidavit, the plaintiff's mortgage arrears policy, and mortgage insurance.

The court found no genuine issues requiring a trial, noting the defendant's undisputed default and the mortgage's maturity.

The motion was granted, ordering the defendant to pay the outstanding mortgage amount and granting a writ of possession to the plaintiff, along with costs.

The plaintiffs brought a motion for directions regarding the proper scope of questioning when examining a non-party witness on a pending motion under Rule 39.03 of the Rules of Civil Procedure.

The court held that the scope of such an examination is limited solely to the personal knowledge of the witness.

A Rule 39.03 witness is not required to take reasonable steps to inform themselves prior to being examined, nor are they obliged to make enquiries of others if they cannot answer questions due to a lack of knowledge or recollection.

The plaintiff insurers alleged a conspiracy to defraud by the defendants involving false medical assessment reports and invoices for statutory accident benefits claimants.

The moving defendants sought directions on producing medical documentation containing personal health information (PHI) of non-party claimants.

The court held that the claimants' consent in the Application for Accident Benefits (OCF-1) was broad enough to permit disclosure in civil litigation.

Furthermore, section 49(1) of the Personal Health Information Protection Act, 2004 (PHIPA) independently permitted the plaintiffs, as recipients, to use and disclose PHI for the action's purposes.

To address privacy concerns, the court directed that PHI be filed separately in a sealed envelope with the presiding judicial officer, not in the public court file.

The defendants brought a motion for security for costs under Rule 56.01(1)(c) of the Rules of Civil Procedure, citing unpaid costs orders against the plaintiffs from previous proceedings.

The court found the defendants met their initial onus, as the plaintiffs had multiple unpaid costs orders from prior dismissed actions.

The burden then shifted to the plaintiffs to show that an order for security would be unjust.

The plaintiffs failed to establish impecuniosity or that their claim had a good chance of success.

The court granted the motion, ordering the plaintiffs to post $60,000 in security for costs in installments.

The plaintiff moved for leave to amend a statement of claim arising from alleged investment fraud by an advisor and alleged supervisory failures by institutional defendants.

Some amendments were granted on consent and some were withdrawn.

The court granted the contested amendments, holding they pleaded material facts rather than evidence, were relevant to negligence and punitive damages allegations, and were proportionate despite increasing the scope and complexity of discovery and trial.

Leave was also granted for a further particular of alleged negligence.

The defendant, the Superintendent of Financial Services, brought a motion for security for costs against the plaintiff, who was ordinarily resident in Brazil.

The plaintiff opposed the motion, arguing impecuniosity and that his claim against the Motor Vehicle Accident Claims Fund was not barred despite his illegal residency status in Canada at the time of the accident.

The court found the plaintiff failed to establish impecuniosity, as he had a brother in Ontario with income and unexplained post-accident earnings.

The court deemed the merits of the claim a neutral factor, leaving the statutory interpretation issue for a pending summary judgment motion.

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

The defendant brought a motion to remove the plaintiff's lawyer of record, arguing the lawyer was in a conflict of interest and a potential witness.

The plaintiff opposed the motion and brought a cross-motion for a timetable.

The court found no evidence of a conflict of interest and concluded the motion was premature regarding the lawyer's potential status as a witness.

The motion to remove counsel was dismissed without prejudice, and the cross-motion for a timetable was granted on consent.

The estate trustee brought a motion seeking leave to withdraw admissions and amend a statement of claim relating to ownership of corporate shares and real property, and to consolidate three related proceedings.

The court applied Rule 26.01 of the Rules of Civil Procedure and the jurisprudence governing withdrawal of admissions under Rule 51.05.

It held that the moving party failed to establish a reasonable explanation for the change in position and failed to demonstrate absence of prejudice, particularly given a prior consent order directing sale of the property based on joint ownership.

The proposed amendments concerning the property were also found to constitute an abuse of process, and consolidation was refused because it would conflict with the existing reference process and increase procedural complexity.

The defendant brought a motion to sever the claims of two plaintiffs who alleged historical sexual abuse by their uncle, arguing the claims did not meet the joinder test under Rule 5.02(1) of the Rules of Civil Procedure and would cause prejudice if tried together.

The court held the claims did not arise from the same transaction or occurrence, did not raise common questions of fact or law, and would require separate evidence and expert testimony.

The court further found that joinder would complicate the proceedings and create prejudice given the significant passage of time and credibility issues.

Even if joinder were technically permissible, the court concluded severance was justified under Rule 5.05 due to undue prejudice.

The plaintiffs were ordered to pursue their claims in separate proceedings.

The defendants brought a motion seeking answers to undertakings and responses to questions refused during cross‑examinations of affiants whose affidavits were filed by the plaintiff in support of a motion for summary judgment.

The court applied the governing test for refusals in documentary and oral discovery on motions, considering relevance, breadth of the request, and claims of privilege.

Numerous refusals relating to corporate relationships, website issues, production agreements, trademark assignments, damages, pricing, and regulatory compliance were found relevant and ordered answered, while others were denied as overly broad or irrelevant.

The court also ordered the listing of documents claimed to be privileged to permit further consideration of privilege claims.

A re‑attendance for further cross‑examination was permitted following the provision of answers.

The defendant brought a motion seeking orders that two Toronto actions arising from a motor vehicle accident be tried together, transferred to Brampton, and then tried together with an existing Brampton action arising from the same accident.

While the plaintiffs did not oppose the request that the Toronto actions be tried together, they opposed transferring the actions to Brampton and consolidating them with the Brampton proceeding.

The court held that the Toronto actions were newly commenced and could not realistically be ready for the scheduled January 2014 trial of the Brampton action.

Justice Snowie had already ordered that the Brampton action proceed alone, having considered prejudice to the plaintiff in that action.

The court found no independent basis for transferring the Toronto actions to Brampton under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

The defendants moved under s. 106 of the Courts of Justice Act to stay the copyright portion of an action until the foreign copyright owners were added as parties or consented to be bound by the court’s decision.

The motion turned on whether, under s. 41.23(2)(c) of the Copyright Act, the interests of justice required the copyright owners to be parties where the plaintiffs were licensees and contractual representatives of those owners.

The court held that the plaintiffs had authority, and in one case a contractual obligation, to enforce the copyright owners’ rights and that the owners were aware of the litigation but chose not to participate.

The court also noted the defendants’ significant delay in bringing the motion and the advanced stage of the proceedings.

It concluded that the interests of justice did not require the copyright owners to be added as parties and dismissed the motion.

The moving party (defendant) in a solicitor's negligence action sought leave to amend his statement of defence to plead an alternative defence of discoverability regarding a missed limitation period for a 2001 motor vehicle accident.

The responding party (plaintiff) opposed the amendment, arguing it would cause irreparable prejudice.

The Master granted the motion, finding that the responding party's evidence of prejudice was insufficient and that any potential prejudice could be compensated by costs.

The plaintiffs brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of documents from a non‑party, the Special Investigations Unit, arising from an investigation into a collision between an e‑bicycle and a police vehicle.

The court reviewed the high threshold governing non‑party production, including the requirements that the documents be relevant to a material issue and that it would be unfair to require the moving party to proceed to trial without them.

While relevance was established, the court held that most requested documents should not be produced because equivalent witness information had already been obtained from police sources and the public interest in maintaining SIU witness confidentiality outweighed disclosure.

However, limited disclosure was ordered where fairness required it, including the statement of a deceased witness, the statement of the police officer defendant, related follow‑up reports, and redacted investigator notes.

The balance of the requested documents was not ordered produced.

The defendant brought a motion under Rule 24.01(1)(c) of the Rules of Civil Procedure to dismiss an action for delay where the plaintiff failed to set the matter down for trial within six months after the close of pleadings.

The court found that pleadings had effectively closed in 1996 but the action was not set down for trial until 2011, resulting in approximately 15 years of delay and nearly 26 years since the underlying events.

The plaintiff’s explanations, including health issues and disputes with former counsel, were insufficient to justify long periods of inactivity.

The court held that the delay was inexcusable and that the passage of time created a presumption of prejudice which the plaintiff failed to rebut.

Given faded memories, unavailable witnesses, and the risk that a fair trial was no longer possible, the action was dismissed for delay.

The moving party sought an order dismissing relief requested in a notice of hearing for directions and a declaration that the court lacked jurisdiction to continue a reference arising from a judgment for sale under the Partition Act.

The original judgment ordered the sale of jointly owned properties under the direction of a referee, with proceeds to be paid into court.

The applicant in the original proceeding later privately sold its ownership interest without complying with the judgment for sale and without paying proceeds into court.

The court held that the judgment for sale was the sole jurisdictional basis for the reference and had become unenforceable due to the private sale.

As a result, the reference master lacked jurisdiction to continue the reference.