David Chernos

In complex estate and commercial litigation arising from estate planning transactions and a will that effectively disinherited family members, the plaintiffs sought leave to further amend their statement of claim to add allegations of knowing assistance in breach of trust and fiduciary duty against an accountant and additional particulars against other defendants.

Several defendants opposed the amendment on the basis of prejudice and limitation periods under the Limitations Act, 2002.

The court held that under Rule 26.01 of the Rules of Civil Procedure leave to amend should be granted unless non-compensable prejudice would result, and that disputes about discoverability and limitation periods should be determined by the trial judge on a full evidentiary record.

As discoveries were ongoing and trial remained more than a year away, any prejudice could be addressed through costs.

Leave to amend was granted with costs awarded to certain defendants for prejudice arising from the amendments.

A non‑party developer sought a protective order restricting disclosure of its financial and project financing documents produced in litigation concerning a municipal RFP process.

The moving party argued the information was confidential and that disclosure to a competitor should be limited to counsel and experts and sealed from the public record.

Applying the test in Sierra Club of Canada v. Canada (Minister of Finance), the court held the evidence did not establish a real and substantial risk of harm or a sufficiently important commercial interest.

The court emphasized the open court principle and the public interest in transparency where allegations of political influence and misconduct in a municipal procurement process were raised.

The motion for a protective and sealing order was dismissed, though the court ordered reciprocal disclosure of equivalent financial documents relating to the plaintiff’s proposal.

The appellant, Jetport Inc., appealed a Master's order regarding discovery refusals in three related actions arising from an aviation insurance coverage dispute.

The court allowed the appeal in part, ordering the respondent insurer to answer questions about its course of conduct with other insureds regarding policy exemptions, finding them relevant to the pleadings.

The court also relieved the appellant from answering a question about claims against other third parties, as it was not relevant to mitigation.

However, the court upheld the Master's order requiring the appellant to answer questions about whether its employee sought legal advice from in-house counsel regarding a pilot clause, finding that disclosing the fact of such discussions did not breach solicitor-client privilege.

Following the dismissal of appeals from a master's decision rejecting claims of litigation privilege, the court determined costs.

The responding parties sought partial indemnity costs reflecting significant legal work and extensive materials filed on the appeal.

The court applied the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable and should reflect the parties’ reasonable expectations.

The court rejected arguments that the large volume of materials filed by the appellant should influence the award and noted that the appellant advanced an arguable legal position without misconduct.

The court awarded $8,000 inclusive of fees, disbursements, and tax to each group of respondents.

The plaintiff brought a motion to set aside a registrar’s administrative dismissal of a defamation action against an unknown defendant and sought default judgment.

The defendant had posted numerous anonymous defamatory statements about the plaintiff online, continued publishing further statements after the action commenced, refused to identify himself despite a court order, and was noted in default.

The court held that the registrar’s dismissal should be set aside because the plaintiff had received no notice and had not been dilatory.

The court found the statements plainly defamatory and entered judgment in default.

The plaintiff was awarded $100,000 in general damages, $50,000 in aggravated damages, $50,000 in punitive damages, and substantial indemnity costs.

Appeal from a Master's order compelling production of communications and answers on discovery despite a claim of litigation privilege.

The appellant argued that emails and a meeting with its insurance broker were created for the dominant purpose of anticipated litigation following denial of insurance coverage for an aircraft crash.

The court held that the appellant failed to establish an evidentiary basis that the dominant purpose of the communications was litigation, noting that the available evidence suggested the discussions focused on advancing the insurance claim rather than preparing for litigation.

The court further held that any common interest litigation privilege between the insured and the broker would have been dissolved once the insured commenced an action against the broker.

The Master's order compelling disclosure was upheld.

The applicant sought an order under s. 6 of the Arbitration Act, 1991 referring a contractual dispute to arbitration under a specific multi‑party arbitration procedure contained in a power supply contract.

The respondent agreed the dispute should proceed to arbitration but argued that a different contractual arbitration clause governed, requiring a single arbitrator to determine issues of contractual interpretation before any broader arbitration process could be triggered.

The court interpreted the contract as containing both a universal arbitration clause for general disputes and a limited clause applicable only if certain economic conditions were established.

The court held the dispute concerned interpretation of the agreement and therefore fell within the general arbitration clause.

The motion was dismissed and the matter directed to proceed before a sole arbitrator.