Barbara McAfee

The respondent brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) over a residential property and to discharge the CPL.

The applicant father claimed he provided funds for the property's purchase and mortgage, alleging an oral trust agreement.

The court found the applicant failed to make full and fair disclosure of material facts on the ex parte motion, including discrepancies in the amounts allegedly provided and his involvement in the mortgage.

Although a triable issue regarding an interest in land was established, the court held that the equities favoured discharging the CPL, as damages would be an adequate remedy and a sale was pending.

The CPL was discharged on the condition that a portion of the sale proceeds be paid into court.

The defendant brought a motion for security for costs against the corporate plaintiff in a commercial lease dispute.

The plaintiff conceded it had insufficient assets, satisfying the defendant's initial onus under Rule 56.01(1)(d).

The court found the plaintiff met the high threshold to demonstrate impecuniosity, as its sole shareholder's only income was ODSP and the business had failed.

The court also found the plaintiff's claim was not plainly devoid of merit, given evidence of alleged breaches of the lease by the defendant.

The motion for security for costs was dismissed, with costs awarded to the plaintiff in the cause.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendants to pay $368,575.88 into court, representing an alleged overpayment due to an accounting error.

The court found that the plaintiff failed to establish the existence of a specific, differentiated fund, as there was no evidence the overpaid amounts remained in the corporate defendant's bank account or were earmarked.

The motion was dismissed, as the relief sought amounted to execution before judgment.

The plaintiff brought a motion to validate service of a statement of claim on a corporate defendant and to extend the time for service and permit substituted service on an individual defendant via a non-party insurer.

The action arose from a motor vehicle accident.

The court validated service on the corporate defendant, finding it was properly served at its registered office address.

The court also granted the extension of time and substituted service on the individual defendant, finding no actual prejudice caused by the delay and that the proposed method of service would reasonably bring the claim to his attention.

The defendant insurer brought a motion under Rule 32 for an order permitting its appraiser and experts to inspect the plaintiffs' property, which had suffered fire damage.

The plaintiffs opposed the timing of the inspection, arguing it should occur after the ongoing appraisal process concluded and that the request was delayed.

The court granted the motion, finding no undue delay and noting that the defendant had not inspected the property since the action commenced.

However, the court prohibited one of the defendant's proposed experts from attending due to allegations that they had previously caused additional damage to the property.

No costs were awarded.

The defendant insurer moved under Rule 30.10 for production of records from various non-parties, including the Ontario Provincial Police (OPP), relating to an organized crime investigation known as Project Hobart.

The insurer sought these records to defend an action for coverage following an arson at the plaintiff's business premises.

The court dismissed the motion for the OPP records, finding that the insurer failed to establish that the criminal investigation file, which did not involve arson charges, was relevant to a material issue in the civil action.

An alternative request to stay the action was also dismissed, and costs were awarded to the responding parties.

The defendant municipality moved to strike portions of the plaintiffs' statement of claim under Rule 25.11, arguing they improperly pleaded evidence and irrelevant facts.

The plaintiffs, land developers, sued for breach of contract and bad faith regarding a subdivision development.

The Master dismissed the motion, finding that where bad faith is alleged, the requirement to provide full particulars under Rule 25.06(8) overrides the prohibition against pleading evidence, and the impugned paragraphs properly detailed the alleged bad faith conduct.

The plaintiff purchaser brought a motion under Rule 45.02 for an order requiring the defendant vendor to pay into court the deposit from an aborted real estate transaction.

The transaction failed to close because the vendor did not complete required electrical upgrades.

The plaintiff mistakenly signed a mutual release directing the deposit to the vendor, and the vendor's agent disbursed the funds.

The court found the plaintiff met the test for Rule 45.02, establishing a claim to a specific fund, a serious issue to be tried regarding the mistaken release, and that the balance of convenience favoured preserving the remaining $175,000 held by the vendor.

The defendant Toronto Transit Commission brought a motion to compel answers to refusals from the plaintiff's examination for discovery in a personal injury action.

The court granted an extension of time for the defendant to bring the motion.

The court ordered the plaintiff to produce her Facebook account, finding it relevant to her claims for loss of enjoyment of life.

The court also ordered the plaintiff to request and produce her employment file from Elections Canada, finding it relevant to her claim for loss of income.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination with a neurologist in Toronto.

The plaintiff opposed the location, providing uncontroverted medical evidence from her treating physician and psychologist that she could not tolerate car travel longer than 30 minutes due to her injuries from a skid steer accident.

The court dismissed the motion, finding that while defendants have a prima facie right to choose their medical expert, this right is not unfettered when it compromises the plaintiff's well-being.

The defendants were granted leave to arrange an examination within a 30-minute drive of the plaintiff's residence.

The defendant former employer brought a motion to stay the plaintiff's wrongful dismissal and breach of contract action pursuant to s. 7(1) of the Arbitration Act, 1991.

The plaintiff opposed the stay, arguing the arbitration clause was invalid, the oppression claim was not arbitrable, and the defendant had delayed unduly by filing a statement of defence and counterclaim before raising the arbitration clause.

The court applied the five-part framework from Haas v. Gunasekaram and found that the dispute arguably fell within the broad arbitration clause.

The court rejected the plaintiff's arguments under s. 7(2), noting the defendant's counsel only discovered the arbitration clause during documentary discovery and raised it immediately.

The motion to stay the action was granted.

The plaintiffs brought a motion for an order approving a draft discovery plan in an action for misrepresentation, breach of contract, and defamation arising from a construction project.

The defendants sought to include deadlines for Scott Schedules and a specific provision regarding documentary discovery for their counterclaim.

The court approved the discovery plan with adjusted deadlines, declined to include a deadline for Scott Schedules as they had already been served, and added a general provision for documentary discovery relating to all pleadings.

Costs of $1,000 were awarded to the plaintiffs in the cause.

The plaintiff brought a motion to compel answers to questions refused during the examination for discovery of the defendant's representative and to require a re-attendance.

The underlying action involves a slip and fall at the defendant's health club.

The court ordered the defendant to answer questions regarding post-accident communications about anti-slip material and inspection policies, finding them relevant to the pleadings.

The court also ordered the defendant to re-attend for a virtual examination for up to two hours to answer questions arising from undertakings and refusals.

The plaintiff brought a motion for a certificate of pending litigation (CPL) regarding two properties, alleging they were part of a real estate partnership with his father.

The court found there was a triable issue regarding an interest in land but declined to grant the CPL based on equitable factors.

The court concluded that damages would be a satisfactory remedy and that a CPL should not be used to secure a claim for damages.

The motion was dismissed and the interim CPL was discharged.

The plaintiff condominium corporation brought a motion to pay $57,264.20 into court, representing surplus funds from the power of sale of a condominium unit previously owned by the deceased defendant.

Two individuals claiming an interest in the defendant's estate appeared on the motion.

The court granted the order to pay the funds into court without prejudice to any future disputes over the amount, including deducted legal fees, and ordered the plaintiff to provide copies of legal accounts to the interested parties.

No costs were awarded for the motion.

The plaintiffs brought a motion for an order requiring the defendants to serve a further and better affidavit of documents in an action arising from the alleged breach of an agreement for the sale of a medical practice.

The defendants opposed, arguing the requested documents were irrelevant, disproportionate, and that the motion should be refused due to the lack of a discovery plan under Rule 29.1.05(1).

The court found the requested OHIP billing sheets, reconciliations, and bank statements were relevant to the pleadings and ordered their production, awarding costs to the plaintiffs.

The plaintiff (defendant to the counterclaim) brought a motion seeking an order that the defendant (plaintiff by counterclaim) post further security for costs in the amount of $174,000.00.

The court found the requested amount excessive, noting inflated estimates for lawyers' time.

Exercising its broad discretion, the court ordered the defendant to post a further all-inclusive installment of $70,000.00 as security for costs of the counterclaim.

Costs of the motion were awarded to the defendant in the cause, as the ordered amount was closer to their position and they had attempted to settle.

The plaintiffs moved to exempt a $145,000 personal injury settlement from garnishment by a non-party judgment creditor.

The creditor argued the plaintiffs lacked clean hands due to past conduct in evading judgment.

The court found the plaintiffs' conduct did not amount to a lack of clean hands and held that damages for pain and suffering, along with associated pre-judgment interest and legal costs, are exempt from garnishment.

The motion was granted, and the full settlement amount was exempted.

The defendant and plaintiff by counterclaim, Donald Wright, brought a motion seeking leave to amend his statement of defence and counterclaim and to compel answers to certain follow-up discovery questions.

The responding parties opposed the motion and sought to strike an affidavit.

The Master granted leave to amend the pleadings, finding no new cause of action or non-compensable prejudice.

The Master also ruled on the follow-up questions, ordering one to be answered and two not to be answered.

The preliminary issue regarding the striking of an affidavit was dismissed.

The defendants brought an urgent motion to discharge a certificate of pending litigation (CPL) that the plaintiff had obtained without notice.

The central issue was whether the plaintiff failed to disclose a "No Registration" clause (NRC) in the Agreement of Purchase and Sale (APS) as a material fact.

The court found that the NRC was not material because the vendor had terminated the APS prior to the CPL motion.

Furthermore, the NRC did not explicitly prohibit CPL registration.

Applying the Dhunna factors, the court determined that justice favored maintaining the CPL, given the uniqueness of the land, the plaintiff's intent to reside there, and the inadequacy of damages as a remedy.

The defendants' motion to discharge the CPL was dismissed, and costs were awarded to the plaintiff.