David Major

The plaintiff brought an oral motion during trial to strike portions of an affidavit and its exhibits, primarily on grounds of hearsay, inadmissibility as business records, opinion/legal conclusion, prior consistent statements, and non-compliance with discovery rules.

The court largely dismissed the motion, finding most documents admissible as business records under section 35 of the Evidence Act.

It ruled that diary notes were not inadmissible prior consistent statements and granted leave for information not provided within 60 days due to lack of prejudice.

However, the court struck one speculative sentence from the affidavit and ruled that numerous photographs were not admissible as business records.

The defendant architect brought a motion for particulars of the plaintiffs' fresh as amended statement of claim regarding alleged design errors and cost overruns on a hotel redevelopment project.

The defendant also sought to strike a paragraph pleading the purchase of professional liability insurance.

The court dismissed the motion for particulars, finding the plaintiffs had provided sufficient detail in their response to enable the defendant to plead, and that further detail was a matter for discovery.

The court granted the motion to strike the insurance paragraph, finding it scandalous and irrelevant to the dispute.

The plaintiff hospital brought an action against the defendant contractor for damages resulting from an over-humidification event that damaged operating room equipment.

The plaintiff alleged the defendant failed to properly install an air handling unit by omitting a required interlock between the supply fan and humidifier.

The defendant argued the damage was caused by hospital staff manually overriding the system.

The court found the defendant liable for breach of contract due to the installation deficiency and failure to train hospital staff, awarding the plaintiff full damages of $908,345.13.

This endorsement addresses several refusals arising from examinations for discovery between the Toronto Transit Commission (TTC) and two of the Designers, WSP Canada Inc. and IBI Group Architects (Canada) Inc., in a complex construction litigation involving the Steeles West Subway Station project.

The court applied rules of discovery, relevance, and proportionality to compel answers or further productions regarding litigation privilege, evidence supporting delay allegations, reasons for not replacing a contractor, and clarification of legal positions on specifications.