Connia Chen

The defendants brought a motion to dismiss the plaintiff's $1.2 billion action for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, alleging fraudulent and negligent misrepresentation regarding a 2007 mining transaction, was commenced in Ontario in 2014 but remained at the pleadings stage.

The court found the delay of over eight years to be inordinate and inexcusable, rejecting the plaintiff's explanations regarding replacement of counsel, the pandemic, and health issues.

The court concluded that the delay caused actual prejudice to the defendants due to faded memories, the death of a key witness, and the potential loss of documentary evidence, thereby risking a fair trial.

The action was dismissed.

On the eve of trial, the plaintiffs brought a motion for further documentary production and discovery after the defendants provided late answers to questions previously refused during examinations for discovery.

The defendants argued that issue estoppel applied due to previous unsuccessful refusals motions.

The court rejected the issue estoppel argument, finding that the defendants altered the litigation landscape by voluntarily providing the late answers.

The court ordered limited, file-specific documentary production relevant to the new answers, but denied broader discovery requests to avoid delaying the trial.

The defendants, withdrawn partners of an insurance defence law firm, brought a motion under Rule 45.02 for an order directing the plaintiff partnership to pay their capital repayment amounts into court pending trial.

The plaintiffs had sued the defendants for over $7 million for breach of contract and fiduciary duty, asserting a right of set-off against the capital.

The court found that the capital account constituted a specific fund and that there was a serious issue to be tried.

However, the court dismissed the motion for payment into court because the defendants failed to establish a risk of dissipation, instead ordering the plaintiffs to provide quarterly financial disclosure and not expose the capital to differential risk.