Barbara McAfee

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.

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 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, Stainless Steel Products (SSP), brought a motion to set aside a registrar's order dismissing its action for delay.

The action sought payment of a default judgment from Ohio and a declaration that a property transfer was a fraudulent conveyance.

The court applied a contextual approach, considering factors such as the explanation for delay, inadvertence, and prejudice to the defendants.

The court found the delay satisfactorily explained, the failure to meet the deadline inadvertent, and no significant prejudice to the defendants.

Despite uncertainty regarding the promptness of the motion, the court exercised its discretion to set aside the dismissal order in the interests of justice.

This was a motion brought by His Majesty the King in Right of Ontario for security for costs against William Adamson Skelly and Adamson Barbecue Limited.

The court applied the two-step analysis under Rule 56.01(1) of the Rules of Civil Procedure.

It found that Mr. Skelly was ordinarily resident outside Ontario and Adamson Barbecue Limited had insufficient assets in Ontario.

The applicants failed to establish impecuniosity or that the order would be unjust.

The court also noted the low likelihood of success for the applicants' underlying constitutional challenge to the Reopening Ontario Act and related regulations, which were spent or revoked.

The motion for security for costs was granted in the amount of $30,000, and motion costs of $2,000 were awarded to Ontario.

The plaintiff brought a motion seeking an order for the defendant to produce a further and better affidavit of documents, specifically non-privileged documents related to a corporate reorganization or restructuring, regardless of their temporal origin.

The defendant argued the motion was premature, suggesting the issues could be addressed during examinations for discovery.

The court found that the documents were relevant based on the pleadings and that the defendant had previously agreed to their production.

The motion was granted, and the defendant was ordered to serve a sworn, comprehensive affidavit of documents.

Costs were awarded to the plaintiff.

The plaintiff, Kaboom Fireworks Inc., brought a motion to compel several defendants (Vulcan Fireworks International Inc., Joseph Wan, Mystical Distributing Company Ltd., and Mystical Distributing International Ltd.) to answer undertakings and refusals from examinations for discovery.

The action concerns an alleged breach of an Exclusive Supply Agreement.

The court addressed various categories of refusals and undertakings, largely finding the questions relevant to the pleadings, particularly regarding the relationships between defendant entities, damage calculations, and the sale of Vulcan.

Most outstanding discovery obligations were ordered to be answered, with some resolved by consent or adjourned.

The defendant, Law Society of Ontario, brought a motion to compel the plaintiff, Rosemary Cremer, to answer questions refused during her examination for discovery and to reattend for further discovery.

The plaintiff had sued the Law Society for damages, alleging breach of fiduciary duty, negligence, and other torts related to the handling of trust funds.

The court found the questions relevant to the pleadings, particularly concerning the Law Society's justification for its actions as trustee and the plaintiff's role as bookkeeper.

The court rejected the plaintiff's argument of undue prejudice based on proportionality.

The motion was granted, ordering the plaintiff to answer the specified questions and reattend discovery, with costs awarded to the defendant.

The plaintiff, StorageVault Canada Inc., brought a motion for the issuance of certificates of pending litigation (CPLs) against the defendants concerning seven parcels of land.

StorageVault alleged a binding agreement for the purchase of these properties, seeking specific performance.

The defendants opposed, arguing no binding agreement existed and that specific performance was not an appropriate remedy.

The court dismissed the motion, finding no triable issue regarding a breach of contract or the availability of specific performance, as the draft agreements were non-binding, the alleged agreement was not capable of performance due to third-party approvals and rights of first refusal, and the properties were not unique, making damages an adequate remedy.

The equities were found to favour the defendants.

The plaintiff, Jinhang Feng, brought a motion for leave to amend the statement of claim to add alternative claims for monetary damages and unjust enrichment, in addition to the original claim for specific performance of an agreement of purchase and sale.

The defendant, Han Yun Liu, opposed the motion, arguing that the proposed amendments constituted a new cause of action and were therefore statute-barred.

The court granted leave to amend, finding that the proposed amendments did not introduce a new cause of action but rather sought alternative relief based on the same facts already pleaded.

The court also awarded substantial indemnity costs to the plaintiff, finding that the plaintiff had obtained an order more favourable than a prior offer to settle the motion.

The defendant brought a motion seeking production of documents identifying the source of income reported in the plaintiff's and Analitix Group Inc.'s income tax returns for 2013-2017, including T4s and T4As.

This request arose during discovery in a wrongful termination action where the plaintiff's employment status (employee vs. independent contractor) was a key issue.

The court found the request to be a proper follow-up question and relevant to the pleadings, particularly concerning whether the plaintiff worked exclusively for the defendant.

The motion was granted, and the plaintiff was ordered to produce the requested documents, with costs awarded to the defendant.

The defendant, Aviva Insurance Company of Canada, brought a motion seeking answers to undertakings and refusals from the plaintiff, Shoppers Drug Mart Inc., following an examination for discovery in an insurance claim dispute.

The core dispute revolved around the relevance and proportionality of requests for drug identification numbers (DINs) and storage condition information for a large shipment of pharmaceuticals allegedly damaged in a truck accident.

The court granted most of the defendant's requests, compelling answers to undertaking no. 5 and refusal nos. 1 to 5, finding them relevant to the issue of cargo damage and not disproportionate.

However, the court denied the request for refusal no. 6, deeming it too broad and not relevant to the contractual claim against Aviva.

The defendant was awarded costs.

The plaintiff brought a motion to compel the examination for discovery of David Eckert, the president and CEO, as the corporate representative for the defendants Juice DMS Advertising Limited and Yellow Pages Limited.

The corporate defendants argued that Adrian Fitz-Gerald, an executive advisor with direct involvement in the relevant events, was a more appropriate representative.

The court applied the test for substituting a corporate representative, which places the onus on the corporation to show the plaintiff's chosen representative is inappropriate.

The court found that Eckert lacked sufficient direct knowledge of the matters in dispute and that requiring his attendance would be unfairly onerous given his extensive managerial responsibilities.

Fitz-Gerald, conversely, was found to be personally involved and knowledgeable.

The motion to examine Eckert was dismissed, and Fitz-Gerald was ordered as the appropriate representative.

Costs were awarded to the corporate defendants.

This motion, brought by the defendant Servisair Inc., sought various relief including dismissal of the action, but primarily focused on costs arising from the plaintiff's outstanding undertakings and failure to attend a mandatory mediation.

The court fixed costs thrown away for the aborted mediation and costs of the motion, both on a partial indemnity basis, payable by the plaintiff to Servisair Inc.

The plaintiff, FirstService Residential Ontario, brought a motion for an order directing the parties to comply with a proposed discovery plan.

The motion primarily concerned disputed provisions regarding the discovery of documents from the defendants, who were former employees and a competitor accused of breach of fiduciary duty, breach of contract, breach of confidence, conspiracy, and unlawful solicitation of clients and employees.

The court ruled on the relevance of various categories of documents, including employment agreements, communications related to client and employee solicitation, and financial statements, and imposed the discovery plan with specific inclusions and exclusions.