Ben Vladlen Hanuka

The defendants brought a motion to strike the plaintiffs’ motion seeking production of documents from non-parties and to quash a summons requiring a non-party to attend for examination.

The action had already been set down for trial after the plaintiffs served a trial record.

The court held that under Rule 48.04(1) of the Rules of Civil Procedure, a party who has set an action down for trial cannot initiate further discovery or related motions without leave of the court, absent exceptional circumstances.

The plaintiffs failed to seek leave and did not establish any substantial or unexpected change in circumstances justifying further discovery.

The summons to the non-party was also non‑compliant with Rule 34.03 because it required attendance in a different region from the witness’s residence.

Franchisees sought rescission and damages under the Arthur Wishart Act after renewing a coffee shop franchise.

The franchisor negotiated a separate lease amendment with the landlord that shortened the lease term but deliberately withheld that information while inducing the franchisees to continue operating and sign a renewal letter.

The court held that the renewal created a new franchise agreement requiring disclosure, and the nondisclosure of the shortened lease term was a material omission tantamount to no disclosure.

The franchisees validly rescinded within the two‑year statutory period and were entitled to repayment of amounts paid to the franchisor and its associate, including rent and related expenses, as well as damages for breach of the duty of fair dealing.

The plaintiffs sought leave to appeal a motion judge's decision that directed a trial on the issue of whether a franchise disclosure document was merely incomplete under s. 6(1) of the Arthur Wishart Act or amounted to no disclosure under s. 6(2).

The Divisional Court dismissed the motion, finding that the sufficiency of a disclosure document is a highly fact-specific inquiry.

The court concluded that the proposed appeal did not raise a question of general importance warranting the attention of the Divisional Court.

The tenant appealed a Tribunal decision, arguing that pertinent evidence regarding bad faith was ignored.

The Divisional Court dismissed the appeal, noting that bad faith is a question of fact and an appeal lies only on a question of law.

The court found it was open to the Tribunal to find no bad faith on the evidence as a whole.

However, the court ordered the landlord to refund $900 in rent paid for April.