D. Green

The plaintiffs, Maria Stiles, Jack Stiles, and The Estate of Peter Elie, brought a motion under rule 30.10 of the Rules of Civil Procedure for production of Toronto Police Service investigative records regarding the death of Peter Elie.

The court found the requested documents relevant and that it would be unfair to require the plaintiffs to proceed to trial without them.

The court ordered production of the records, subject to screening by the Attorney General for privilege or confidentiality, and awarded costs to the plaintiffs.

The plaintiffs sought costs of their successful motion to amend their statement of claim.

The Whyte Defendants and Andrew Paiva opposed the motion and sought their own costs, arguing divided success.

The court, applying Rule 57.01 and s. 131 of the Courts of Justice Act, found that while there was divided success, the plaintiffs were entitled to some costs as they succeeded on the most significant spoliation allegations.

The court dismissed the defendants' claims for costs and fixed the plaintiffs' costs at $2,340.85, inclusive of HST and disbursements, payable in the cause.

The defendants in a solicitor's negligence action brought a motion to compel the plaintiffs to fulfill an undertaking to produce the underlying litigation files from a settled will challenge.

The plaintiffs argued the files were protected by solicitor-client privilege and were not in their possession.

The court held that by suing the defendant lawyer for negligence and claiming the costs of the will challenge as damages, the plaintiffs had impliedly waived solicitor-client privilege over the underlying files.

The court ordered the plaintiffs to fulfill the undertaking, as the files were necessary for the defendants to assess the reasonableness of the damages claimed.

The plaintiffs brought a motion to amend their statement of claim to add a claim for punitive damages and allegations of spoliation of evidence following a pedestrian motor vehicle accident allegedly involving street racing.

The court granted leave to add the punitive damages claim and spoliation allegations concerning the sale of a vehicle and replacement of an engine, finding them to be issues worthy of trial.

However, the court denied leave to add spoliation allegations regarding electronic communications and a failure to remain at the scene, citing a lack of factual foundation.

The plaintiff employee was injured while engaging in horseplay on the defendant employer's premises.

The WSIB ruled he was not in the course of employment, precluding WSIA benefits but allowing a civil action.

At the opening of trial, the defendant brought a motion to restrict the plaintiff's claim to occupier's liability, arguing the WSIB ruling precluded claims based on the employment relationship.

The court dismissed the motion, holding that the WSIB ruling did not negate the plaintiff's common-law right to claim damages for negligence against the defendant as his employer.

The defendants brought a motion to compel the plaintiffs to attend examination for discovery, and the plaintiffs brought a cross-motion to compel answers to undertakings.

The substantive issues were resolved by agreement, leaving only the issue of costs.

The court found that both parties' litigation approach was disproportionate to the issues in dispute, especially given the simplified procedure action.

Despite settlement offers, the parties could not agree on a minor costs amount.

The court, exercising its discretion under the Courts of Justice Act and Rules of Civil Procedure, ordered that each party bear their own costs for these motions.

The plaintiffs brought two motions in a medical malpractice action: one to compel defendant physicians Dr. Fadie Amin and Dr. Anton Helman to answer refusals from discovery, and another for leave to amend their statement of claim to include additional differential diagnoses.

The court analyzed the principles governing hypothetical questions in discovery and the test for amending pleadings.

The refusals motion was largely granted against Dr. Helman, with several questions ordered to be answered or clarified, while largely dismissed against Dr. Amin.

The motion for leave to amend the statement of claim was granted, allowing the plaintiffs to specify additional serious conditions the defendants allegedly failed to consider.

The defendants moved to set aside a default judgment, arguing that their former counsel's negligence, including undisclosed Law Society suspensions and failure to attend to the action, led to the default.

The plaintiffs contended the defendants were aware or should have been aware of their lawyer's issues and lacked an arguable defence.

The court applied the Chitel test, finding the motion was brought without delay, the default was adequately explained by counsel's negligence, and the defendants presented an arguable defence regarding the renovation contract.

The court emphasized that clients should not be irrevocably jeopardized by counsel's neglect and that allowing the judgment to stand would bring the administration of justice into disrepute.

The default judgment and a prior order striking the defence were set aside, and garnished funds were ordered returned as no exceptional circumstances for a freezing order were shown.

The plaintiffs brought a motion under Rule 39.02 of the Rules of Civil Procedure seeking leave to file an affidavit and expert handwriting evidence after cross-examinations, in connection with a pending motion to set aside a default judgment.

The defendants opposed the motion.

The court applied a flexible, contextual approach to Rule 39.02, considering the relevance and responsiveness of the evidence, potential non-compensable prejudice, and the explanation for the delay.

While the evidence was relevant and responsive, the court found that granting leave would cause prejudice to the defendants, necessitate further adjournments, and was inconsistent with the principle of proportionality, especially in a simplified procedure case.

The plaintiffs' motion was dismissed, and the defendants were awarded costs.