Donald E. Short

The applicant sought to assess the legal accounts of her former lawyers more than two years after the retainer ended and the accounts were paid.

The respondent lawyers brought a motion to strike the assessment application as statute-barred under the Solicitors Act.

The court granted the motion to strike, finding no special circumstances to justify the delay and noting prejudice to the respondents.

However, the court granted the applicant's cross-motion, ordering the respondents to return the remaining balance of funds held in trust.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rule 24.01.

The action arose from a 2013 contractual dispute over HVAC services.

The plaintiff's counsel experienced a series of severe personal and professional crises, including the death of a colleague, illness, and a ransomware attack, which caused significant delay.

The court found the delay was not intentional and that the defendant failed to establish a substantial risk to a fair trial, noting the defendant's own failure to preserve evidence.

The motion to dismiss was denied and the action was permitted to proceed.

The plaintiffs brought a motion to disqualify the law firm Adair Goldblatt Bieber LLP (AGB) from representing the defendants in a legal malpractice action.

The plaintiffs argued that their counsel had previously consulted with a partner at AGB about potentially acting as an expert witness for the plaintiffs, during which confidential information was allegedly shared.

The court dismissed the motion, finding that the discussion was brief, general in nature, and did not involve the disclosure of confidential information attributable to a solicitor-client relationship that could prejudice the plaintiffs.

The plaintiff brought a motion to compel the production of data, correspondence, and reports from two environmental consulting firms retained by the defendants.

The defendants claimed litigation privilege over the documents.

The court found that litigation was not the dominant purpose for the creation of the documents, as the parties were still working cooperatively to solve an environmental remediation issue at the time.

Furthermore, the court held that even if privilege existed, the defendants implicitly waived it by directing the plaintiff to share information directly with the consultants without advising that the process was privileged, and by claiming the consultants' costs in their counterclaim.

The motion for production was granted.

This motion concerned a solicitor's negligence claim where the defendants sought further and better production of documents from the plaintiff, including a particularized Schedule 'B' for privileged documents.

The plaintiff brought a cross-motion to amend the statement of claim, notably to include a Charter-based claim against the defendants.

The court granted the defendants' motion for further production, emphasizing the plaintiff's obligation for fulsome disclosure in a solicitor's negligence claim, and ruled that solicitor-client privilege was impliedly waived regarding the legal advice and litigation strategy in the underlying criminal matter.

The court denied the plaintiff's proposed Charter amendment, finding no legal basis for such a claim against a private actor.

The moving defendants sought to set aside a default judgment granted against them in January 2019 for failing to file a defence to the plaintiffs' action regarding unpaid real estate loans.

The court applied the three-part test from Hanratty v. Woods and found that the motion was not launched forthwith, the default was intentional, and the defendants failed to present a triable defence.

Relying heavily on text messages where the individual defendant personally guaranteed repayment, the court dismissed the motion to set aside the default judgment.

The plaintiff in a wrongful dismissal action brought a motion on the eve of trial to compel the defendant employer to produce communications between its internal legal counsel and a third-party workplace investigator.

The defendant argued the motion was barred by Rule 48.04 as the action had been set down for trial, and asserted privilege over the documents.

The court held that leave was not required because the motion sought to enforce a prior production order.

The court further rejected the defendant's claims of solicitor-client and litigation privilege, ordering the production of the withheld communications within five days.

The plaintiff mortgagee brought a motion seeking to examine the defendants' former lawyers and for a declaration that solicitor-client privilege had been waived.

The defendants, mortgagors, alleged they did not understand various mortgage-related documents they signed, claiming non est factum and forgery, thereby putting the legal advice received from their former counsel into issue.

The court granted the plaintiff's motion, finding that the defendants' assertions directly challenged the legal advice and their contemporaneous understanding of the documents, thus implicitly waiving solicitor-client privilege.

The former lawyers were ordered to attend examinations, and conditional solicitor and client costs were awarded to the plaintiff.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against a property.

The plaintiff, who had sold the property to relatives of her real estate broker with an alleged unwritten agreement to repurchase, had fallen into default on rent and faced health issues.

The court, exercising broad discretion under Section 113 of the Courts of Justice Act, granted the plaintiff a "last chance" to repurchase the property at current market value, to be determined by a specific appraisal process.

Failure to meet the conditions by September 30, 2020, would result in the CPL's discharge.

The plaintiff, J.A.L. Developments Inc., brought a motion for leave to conduct further discovery after the action had been set down for trial, pursuant to Rule 48.04 of the Rules of Civil Procedure.

The case involved a profit-sharing agreement for a real estate project where the plaintiff invested $200,000 and alleged fraudulent conveyances and significant discrepancies in accounting, showing a swing from anticipated profits to stated losses.

The court reviewed the evolving test for granting leave under Rule 48.04(1), preferring a flexible "interests of justice" approach over the more rigid "substantial or unexpected change in circumstances" test, especially in light of the COVID-19 pandemic's impact on court operations.

The court granted leave for both parties to conduct further discovery, emphasizing the importance of full pre-trial disclosure for a just, expeditious, and least expensive resolution on the merits.

The plaintiff was injured after colliding with an unlit street light pole on a sidewalk.

She initially sued the City of Toronto, believing it owned and maintained the pole.

Years later, she learned the City had sold the street lights to Toronto Hydro.

The plaintiff brought a motion to correct the defendant's name on the basis of misnomer.

The Master found that the 'litigating finger' was clearly pointed at the entity responsible for the pole, and granted the misnomer correction, awarding substantial indemnity costs to the plaintiff, although noting the decision was practically moot as a parallel appeal had already added Toronto Hydro as a defendant.

The defendant brought a motion to amend its defence and counterclaim and to add a third party claim, alleging that the plaintiff's asset sale violated the Fraudulent Conveyances Act and the Assignments and Preferences Act.

The plaintiff opposed the motion, arguing that the proposed amendments and third party claim were statute-barred.

The court found that the defendant knew or ought to have known the material facts underlying the proposed claims more than two years before bringing the motion.

The court dismissed the motion, holding that the proposed claims were statute-barred and that adding them would cause non-compensable prejudice to the impecunious plaintiff.

In an application seeking a declaration that certain promissory notes were forged, the respondents brought a motion under Rule 30.04(2) to compel the applicants to produce the original promissory notes for inspection.

The applicants argued they did not possess the originals and that the motion was an abuse of process.

The Master granted the motion, ordering both parties to produce any original promissory notes in their possession or provide sworn evidence explaining their whereabouts, emphasizing the importance of verifying pivotal documents.

The plaintiff, Laura Wyse, brought a motion concerning discovery rights and obligations in her employment termination claim against Tangerine Bank and The Bank of Nova Scotia.

The motion sought orders for Tangerine Bank to provide a sworn Affidavit of Documents from one of its own employees, officers, or directors, and to provide a Tangerine employee, officer, or director for examinations for discovery.

The defendants argued that an employee of the parent company, BNS, or a legal assistant who conducted searches, would suffice, citing Rules of Civil Procedure and case law on liberal interpretation.

The court granted the plaintiff's motion, emphasizing the clear terms of the Rules requiring a party's own representative for affidavits and examinations, and upholding the agreed-upon discovery plan. interesting_citations_summary: > The decision clarifies the interpretation of Rules 30.03 and 31.03 of the Rules of Civil Procedure regarding affidavits of documents and examinations for discovery for corporate parties, particularly in the context of subsidiary and parent corporations.

It reinforces that a named corporate defendant must provide its own employee, officer, or director to swear an affidavit of documents and for examination, rather than relying on a representative from a parent or affiliated entity, even if that entity provides legal services or has more direct knowledge.

The court distinguishes previous cases that allowed for a broader interpretation of "officer" or "employee" for discovery purposes, noting they were in different contexts (e.g., plaintiff seeking to examine a knowledgeable non-employee, or an employee with direct incident knowledge).

The ruling underscores the importance of adhering to the clear terms of the Rules and the agreed-upon discovery plan. final_judgement: > The plaintiff's motion was granted.

The court ordered Tangerine Bank to provide a sworn Affidavit of Documents from one of its own employees, officers, or directors, and to provide a Tangerine employee, officer, or director for examinations for discovery.

Costs were awarded to the moving party on a partial indemnity basis. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 4 file_number: "CV-18-607685" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc4/2020onsc4.html" cited_cases: legislation: - title: "Canadian Human Rights Act" url: "https://laws-lois.justice.gc.ca/eng/acts/h-6/" - title: "Canada Labour Code" url: "https://laws-lois.justice.gc.ca/eng/acts/l-2/" - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "TELUS Communications Company v. Sharp et al., 2010 ONSC 2878" url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2878/2010onsc2878.html" - title: "HRD Kitchen Services (Toronto) Ltd. v. Prime Food Equipment Services Ltd., 2017 ONSC 559" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc559/2017onsc559.html" - title: "Bell v. Klein" url: "https://www.canlii.org/en/bc/bcca/doc/1954/1954canlii242/1954canlii242.html" - title: "Atherton v. Boycott, 1989 CarswellOnt 407" url: "https://www.canlii.org/en/on/onsc/doc/1989/1989carswellont407/1989carswellont407.html" keywords: - Discovery plan - Affidavit of Documents - Examinations for discovery - Corporate defendants - Rules of Civil Procedure - Employment law - Subsidiary corporation - Parent corporation areas_of_law: - Civil Procedure - Employment Law --- # Court File and Parties **COURT FILE NO.:** CV-18-607685 **MOTION HEARD:** 2019-10-08 **REASONS RELEASED:** 2020-01-31 **SUPERIOR COURT OF JUSTICE – ONTARIO** **BETWEEN:** **LAURA WYSE** Plaintiff - and - **TANGERINE BANK and THE BANK OF NOVA SCOTIA** Defendants **BEFORE:** MASTER D. E. SHORT **COUNSEL:** Alan J. Davis, for the Plaintiff (Moving Party) adavis@davisbarristers.com Anne K. Gallop, for the Defendants anne.gallop@nortonrosefulbright.com **REASONS RELEASED:** January 31, 2020 # Reasons for Decision ## I. Overview [1] These proceedings relate to claims advanced by the plaintiff, Laura Wyse, for the recovery of damages, in relation to her employment with the defendants, or either of them as, “Legal Counsel”, which commenced on or about April 16, 2012 and which was terminated effective April 13, 2018. [2] The plaintiff claims recovery of damages on account of breach of contract and, in particular, termination of her employment without reasonable advance notice, plus additional damages and other relief that includes damages for breach of obligations owed to the plaintiff under the [Canadian Human Rights Act](https://laws-lois.justice.gc.ca/eng/acts/h-6/) and [Canada Labour Code](https://laws-lois.justice.gc.ca/eng/acts/l-2/). [3] In particular, the plaintiff asserts that she was terminated, at a point in time when she was pregnant and experiencing medical issues and residual disabilities as a result of her pregnancy. [4] This decision relates to the second half of a motion brought by the plaintiff regarding the discovery rights and obligations of the parties. ## II.

Action to Date [5] This action was commenced on October 26, 2018.

The defendants, Tangerine Bank (“Tangerine”) and The Bank of Nova Scotia (“BNS”), served their combined Statement of Defence on February 1, 2019. [6] Plaintiff’s counsel delivered a Demand for Particulars with respect to allegations contained in the Statement of Defence on February 14, 2019 and Defendants' counsel provided a Response to the Demand for Particulars later that month. [7] In an effort to reach an early resolution of this case, the parties agreed to undertake the Mandatory Mediation of the claims forming the subject matter of these proceedings before examinations for discovery, with an express agreement to exchange documentary productions prior to the ADR session. [8] In that regard, plaintiff’s counsel proposed that documentary productions be exchanged on or before June 7, 2019.

In particular he identified a list of documents he regarded as relevant to the issues forming the subject matter of these proceedings, which he expected would be included in the defendants' documentary productions. [9] In early June Mr. Davis provided defendants’ counsel with copies of the plaintiff's Affidavit of Documents sworn May 29, 2019 and a draft Discovery Plan prepared by Mr. Davis which were delivered with the June 11, 2019 [10] In his June 11, 2019 letter, Mr. Davis requested that Ms. Gallop immediately review and approve the draft Discovery Plan and, or, contact Mr. Davis forthwith should she have any questions or concerns relating to the terms of the draft Discovery Plan.

Mr. Davis further reiterated his expectation that he would be receiving affidavits of documents and Schedule "A" productions from the defendants no later than June 14, 2019. [11] On June 19, 2019, he received by courier correspondence from Ms. Gallop dated, June 19, 2019 together with the Affidavit of Documents of Susy Guadron, on behalf of the defendant The Bank of Nova Scotia, sworn June 19, 2019 and copies of the Schedule "A" documents referred to therein.

In his reply of June 20, 2019 Mr. Davis inter alia requested that Ms. Gallop provide a signed copy of the Discovery Plan prepared by Mr. Davis for the purpose of putting the said Discovery Plan into effect forthwith. [12] Regrettably, while the preemptive Mandatory Mediation session took place on June 25, that the mediation did not give rise to settlement of any of the issues in dispute. [13] The next day Mr. Davis sent to Ms. Gallop, a request for her to advise if the draft Discovery Plan (sent June 11, 2019) met with her approval and further referencing the need to revise the terms of the said draft Discovery Plan in order to extend the date for production of documents and to reference dates for examinations for discovery.

The following day counsel for BNS confirmed her view that, “the draft Discovery Plan needs to be amended”.

Apparently, Ms. Gallop further referenced in her email that, “due to vacation schedules, we will not be in a position to provide a fulsome response to the proposed Discovery Plan until the week of July 8, but I can confirm that it is unlikely that discoveries will occur in August… ”. [14] In response to that indication, Mr Davis’s office booked a motion for relief which included an Order to establish an appropriate Discovery Plan.

Which ultimately came before my colleague, Master Abrams on August 14, 2019. [15] The affidavit filed in support of the plaintiff’s motion continues: “18. ….

The Notice of Motion included an attached"Schedule "A"" which was a further revised draft Discovery Plan.

The covering letter from Mr. Davis dated, July 10, 2019 included Mr. Davis' request that Ms. Gallop review the terms of the draft Discovery Plan (attached to the Notice of Motion) with her clients and, in so doing, advise as to the extent to which her clients were agreeable to such terms with a view to resolving outstanding issues on a consent basis and, in so doing, obviating the necessity of a motion hearing.

Mr. Davis indicated that the Notice of Motion would be filed with the court for the purpose of securing the August 14, 2019 return date.” ## III.

August 14 Order [16] Master Abrams’ Order reads in part: THIS MOTION made by the plaintiff to put into place an appropriate Discovery Plan was heard this day at Toronto.

ON READING the plaintiff's Motion Record containing Notice of Motion dated, July 10, 2019 with attached proposed draft Discovery Plan and the supporting Affidavit of Maria Galati sworn July 29, 2019, and on further reading the Motion Record of the Defendants /Responding Parties containing the Affidavit of Shirley Wong sworn August 8, 2019, and on further reading the Statement of Claim and Statement of Defence, and on consent of the lawyers for the parties, 1.

THIS COURT ORDERS that discovery of documents and examinations for discovery in the within proceedings be conducted in accordance with the Discovery Plan attached and marked as Schedule "A". [17] Master Abrams adjourned the balance of the motion to the date I heard the present motion, indicating the establishment of that date was “to further address, if necessary, issues, including without limitation, costs of the motion, (including costs of August 14, 2019 attendance). ## IV.

Discovery Plan Rules [18] During the first year following my appointment as a Case Management Master, the Province of Ontario enacted what were colloquially known as the "Osborne Amendments", which took effect on January 1, 2010.

Those rules made it mandatory for the Court to abide by the key principle of "proportionality" in making decisions under the new Rules. [19] In particular, those rules incorporated the new Rule 29.1, which for the first time introduced the concept of a "discovery plan" for civil litigation conducted in the province. [20] That rule provided that where a party to an action intends to obtain evidence by way of an examination for discovery, the parties to the action “shall agree” to a discovery plan in accordance with the rule. [21] Originally, the rule simply mandated that the discovery plan was to be “agreed to before the earlier of, (a) 60 days after the close of pleadings or such longer period as the parties may agree to; and (b) attempting to obtain the evidence." [22] Rule 29.1.03 (3) directs that the discovery plan shall be in writing, and shall include, inter alia, (a) the intended scope of documentary discovery under rule 30.02 taking into account relevance, costs and the importance and complexity the issues in the particular action. [23] Regrettably, the unintended consequence of this new element resulted in delays in getting relatively straightforward cases to the discovery stage, where, prior to the amendments to the Rules to require a Plan, any missing materials could either be sought during an examination for discovery or perhaps resolved on a refusals motion. [24] When the rule was enacted in 2010, there was no provision permitting the court to impose a discovery plan where the parties could not agree.

In [TELUS Communications Company v. Sharp et al., 2010 ONSC 2878](https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2878/2010onsc2878.html), 102 O.R. (3d) 93; 2010 ONSC 2878, I held that while the rule did not provide specific guidance with respect to the imposing of a plan where the parties could not agree on its contents. [25] Ultimately in that case I concluded at paragraph 16 of my decision that the Rules were to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”.

I therefore implemented what I thought was the appropriate result in terms of rule 1.04 (2) which provides for matters that were not provided for in these rules, the practice shall be determined by analogy to them.

I therefore concluded, based upon the foregoing provisions, I had no doubt that I have the authority to impose a discovery plan upon a party that is not willing to “agree” to a Plan. [26] Some years later, the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) were amended effective as of 2019, to conform to (and, in effect, ratify) my 2010 ruling.

The amendments to the rule are of significance and contain specific provisions which are founded upon the intervention of the Court including: Non-Application Of Rule 29.1.01 This Rule does not apply to parties who are subject to a discovery plan established by the court. [27] The rule continues to deal with the consequences of a failure to agree to plan: 29.1.05 (1) On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule. [28] However, now this alternative method for arriving at a Plan has been created: Court may Impose Discovery Plan (2) If the parties fail to agree to a discovery plan in accordance with this Rule, the court may order that examinations for discovery be conducted in accordance with a discovery plan established by the court, which may set a schedule for examinations and impose such limits on the right of discovery as are just [29] It is against that regulatory background, I turn to the issues raised by the plaintiff’s counsel before me and the position of the Defendants. ## V. Current Issues [30] The present corporate structure has given rise to two areas of concern with respect the Plaintiff’ seeking to obtain an order: (a) An Order for a Sworn Affidavit of Documents from an employee, officer, director of Tangerine Bank. (b) An Order that Tangerine Bank provide a Tangerine employee, officer or director for examinations for discovery. [31] The counsel acting for both defendants, takes the position that an employee or officer of the parent company BNS should be sufficient and that the plaintiff is not entitled to seek to insist that employees now working for the Plaintiff’s former employer provide the evidence the plaintiff intends to rely upon. ## VI.

Banks’ Position ### (a) An Order for a Sworn Affidavit of Documents from an employee, officer, director of Tangerine Bank. [32] In this regard it is submitted by the Defendants that: The Plaintiff raised an issue in the Supplementary Motion Record that the Tangerine Bank Affidavit of Documents ("Tangerine AOD") has to be sworn by an employee, officer or director of Tangerine Bank.

In particular, the Plaintiff alleged that the affidavit of Ms. Susy Guadron sworn October 3, 2019, on behalf of the Defendant, Tangerine Bank, does not comply with the requirements in the Rules … based on the fact that Ms. Guadron is not an employee, director or officer of Tangerine Bank. [33] The Defendant's position is that Ms. Susy Guadron is the appropriate individual to swear Tangerine's AOD and the Plaintiff's allegation is misguided for three reasons: - First, nothing in the Rules, including Rule 30.03 which sets out the requirements of affidavits of documents, provides that it must be sworn by an employee, officer or director of the defendant corporation.

As such, the Tangerine AOD is compliant with the Rules. [34] Conversely, I note that in my view the purpose of the rule is to have a legal agent of the party swear to the validity of the litigant’s productions.

If there were no such individuals available, I would have to seek “the next best entity”.

However, based on my brief analysis on this issue that follows, and the applicable rules, I am satisfied the Plaintiff is entitled to an Affidavit of Documents sworn by an individual falling into the categories requested. [35] I note that Rule 30.03 is subject to the provisions of companion sections: 30.01 (1) In rules 30.02 to 30.11,… (b) a document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled. [36] With regard to related entities Rule 30.01 provides: (2) In subrule 30.02 (4), (a) a corporation is a subsidiary of another corporation where it is controlled directly or indirectly by the other corporation; and (b) a corporation is affiliated with another corporation where, (i) one corporation is the subsidiary of the other, (ii) both corporations are subsidiaries of the same corporation, or (iii) both corporations are controlled directly or indirectly by the same person or persons. [37] Rule 30.02 provides in part: ### SCOPE OF DOCUMENTARY DISCOVERY Disclosure 30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

Production for Inspection (2) Every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document. [38] Of particular relevance is this provision: Subsidiary and Affiliated Corporations and Corporations Controlled by Party (4) The court may order a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged. [39] Thus, the Rule permits the defendant to seek production from a parent entity.

What the Rule does not state is that this means of obtaining documents must be used, where the defendant is a separate entity and a named defendant in the action. [40] The Rule continues by addressing provisions relating to the Affidavit of Documents establishes that there is a duty on each party to serve such an affidavit.

Specifically, it is provided that: 30.03 (1) A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power. (3) The affidavit shall also contain a statement that the party has never had in the party’s possession, control or power any document relevant to any matter in issue in the action other than those listed in the affidavit. [41] The second argument put forward by the defendants was that, “the Plaintiff's objection is overly technical, and in contradiction to Rules 1.04(1) and 1.04(1.1)”, which specifies that the Rules should be liberally construed to secure the just, most expeditious and least expensive determination of issues on its merits. [42] The Rules were carefully drafted in this area.

I am not satisfied that a modification of the defined certification to be given by a party, as required by the Rules, would constitute a “just” determination on the merits. [43] I found the defendants’ next argument somewhat troubling.

It was asserted: “Specifically, it is not in the best interests of the parties to dwell on technicalities.

In the words of Master Macleod in [HRD Kitchen Services (Toronto) Ltd. v. Prime Food Equipment Services Ltd., 2017 ONSC 559](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc559/2017onsc559.html), it was emphasized that "[a] party reviewing an affidavit of documents is expected not to make unnecessary technical objections while a party producing an affidavit is expected to respond seriously and in good faith to concerns about the adequacy of documentary production and identification.” [HRD Kitchen Services (Toronto) Ltd. v. Prime Food Equipment Services Ltd., 2017 ONSC 559, 276 ACWS (3d) 797 at para. 32.] [44] I do not regard requiring compliance with the clear terms of this rule, as an unnecessarily “technical” objection. [45] The next argument put to me was based upon the fact that The Bank of Nova Scotia provides legal services to its wholly-owned subsidiary, Tangerine Bank.

Apparently, Tangerine Bank no longer has a legal group, and moreover, there is nobody currently employed at Tangerine who has knowledge giving rise to the events alleged in Ms. Wyse's action.

It is therefore proposed that a Senior Legal Assistant at Scotiabank, was responsible for doing the searches in accordance with the parties' Discovery Plan.

It was argued that “As such, it is appropriate to have [that individual] swear the Tangerine AOD since the person swearing the affidavit is supposed to be the person conducting the search.

In the circumstances, [she] was indeed the individual who conducted the search.” [46] I do not agree that there is any meaningful obligation to examine for discovery the individual who signed the affidavit, particularly where she is not even employed by the subsidiary co-defendant. ### (b) An Order that Tangerine Bank provide a Tangerine employee, officer or director for examinations for discovery. [47] The BNS factum asserts: The Plaintiff is entitled to select an appropriate representative from Tangerine Bank to examine for discovery.

The Plaintiff has been requesting that Tangerine Bank produce an employee, director or officer for examinations for discovery, but failed to name a Tangerine Bank representative to discover as of yet. [48] It is the Defendants' position that Tangerine Bank has the right to put forward someone of its choosing, even if the individual is not an employee, director or officer of Tangerine Bank; and it has suggested that the appropriate individual is the Senior Vice-President and General Deputy Counsel at Scotiabank and oversees a Scotiabank legal team that provides services to Tangerine Bank.

In fact, that individual signed the letter that effected the Plaintiff's termination. [49] The applicable rule addresses: ### WHO MAY EXAMINE AND BE EXAMINED Generally 31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

On Behalf of Corporation (2) Where a corporation may be examined for discovery, (a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and (b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court. (4) Before making an order under clause (2) (b) or (3) (b), the court shall satisfy itself that, (a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and (b) examination of more than one person would likely expedite the conduct of the action. [50] On this issue the Defendants' position is based upon these arguments: First, the Rules do not require that Tangerine Bank put forward an employee, officer or director as its representative for discovery.

Instead, Rule 31.03(2) provides where a corporation may be examined for discovery, the examining party may examine any officer, director or employee on behalf of the corporation.

Importantly, it does not provide that the representative must be an officer, director or employee on behalf of the corporation. [my emphasis] Second, the determination of an officer on behalf of the corporation has been interpreted liberally to include individuals not directly employed by the corporation.

Traditionally, an officer of a corporation is a person responsible for the management, direction, control or supervision of the corporation, but the term is not limited to those who are the named officers of a corporation. [51] Their factum points, for instance, to [Bell v. Klein](https://www.canlii.org/en/bc/bcca/doc/1954/1954canlii242/1954canlii242.html), [1955] 1 DLR 37, 13 WWR (NS) 193 at para. 9.

In that case it was held that it was not required that a direct employee be examined for discovery but an “officer" (interpreted loosely) could also be examined by the plaintiff.

The case involved an action in which a corporation was sued for fraud by the company's auditors.

It was held that an independent firm of accountants, were "officers" and could be examined by the plaintiff.

Accordingly, a person could be regarded as an officer or servant if he or she was the one person connected with the company best informed in the matters which may define or narrow the issues between the parties. [52] I regard this decision as not being particularly helpful as in that case it was the plaintiff seeking to examine a knowledgeable individual who was the auditor of the defendant corporation.

Here the plaintiff is not seeking to examine a non-employee but rather an officer, director or employee of the defendant bank. [53] Similarly, the banks submit that “as established in [Atherton v. Boycott, 1989 CarswellOnt 407](https://www.canlii.org/en/on/onsc/doc/1989/1989carswellont407/1989carswellont407.html)”, 36 CPC (2D) 250; 1989 CarswellOnt 407 (at para. 4) for the purposes of determining whether an individual is an employee within the meaning of Rule 31.03(2), it is not necessary to strictly adhere to the common law principles establishing an employer-employee relationship.

The factum rightly observes: In particular, it was established that a sensible interpretation of the employer-employee relationship depends on the circumstances of each case, bearing in mind that the object is determining the truth. [54] In that case the Police officer who was driving a vehicle owned by the City was ordered to be the appropriate witness on the discovery of the defendant city.

On appeal, that decision was upheld, the brief reasons observed that the proposed officer “… was driving the city’s vehicle when it was involved in the accident.

As such, he has direct knowledge of the incident, superior to that of some other city employee or clerk.

He had sufficient connection with the city to be encompassed within the extended meaning of “employee” as referred to by Judge Cusinato.” [55] Lastly, it is submitted that “the reality is that there is no one from Tangerine Bank that has any direct relevant knowledge of any of the events leading up to the Plaintiff's termination of employment.” That may well ultimately prove to be the case. [56] The plaintiff may have a futile examination, but counsel has been told that and is, in my view, entitled to examine a witness who may turn out to be of little or no utility to the plaintiff’s case.

That determination is not one to be made at this stage. [57] Ultimately, in reaching my decision I am relying as well upon the Discovery Plan that was consented to by both parties and approved by my colleague.

That document concludes with this certification by counsel: The signatories below hereby acknowledge and agree that he or she has prepared and agreed to this Plan to achieve the most expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the proceeding. [58] That document contained in Section D, relating to Oral Examinations, these provisions regarding the witnesses to be examined and the duration of those examinations: Name of Witness -Laura Wyse (Plaintiff) -Katy Waugh on behalf of the defendant, The Bank of Nova Scotia -A representative on behalf of the defendant, Tangerine Bank (to be ascertained after delivery of their Affidavit of Documents and Schedule "A" productions) Expected Length of Examination (without prejudice to the parties' right to bring a motion to extend the length of discovery, and without prejudice to the parties' right to oppose such motion) 1 Day (i.e. up to 7 hours) (total of 7 hours combined for Katy Waugh on behalf of the defendant, The Bank of Nova Scotia and a representative of the defendant Tangerine Bank (to be determined) [59] It seems to me to be implicit in these terms that Ms. Waugh was not expected to be the witness examined with respect to the position of the employer Tangerine Bank. ## VII.

Disposition [60] The plaintiff’s motion is granted.

I am there ruling that there shall issue: (a) An Order for a Sworn Affidavit of Documents from an employee, officer, director of Tangerine Bank. (b) An Order that Tangerine Bank provide a Tangerine employee, officer or director for examinations for discovery. [61] In the result the plaintiffs have been successful on this motion which addressed, what was clearly, an extraordinary area.

I am obliged to counsel for their assistance and patience. [62] An order shall issue reflecting the above determinations. [63] I see no reason why costs should follow the event and, subject to any offers made, I am awarding the moving party her costs of the motion, on a partial indemnity basis.

If the parties are unable to agree upon a form of order or an appropriate costs award, I may be contacted in order that an appropriate protocol can be established for submissions by the parties. --- Released: January 31, 2020 ______________________ Master D. E. Short R. 306/DS

The Master addressed a dispute over costs and interest following the full payment and discharge of a mortgage.

The defendant, Juleth Dawson, sought a credit for amounts paid, including a higher post-default interest rate and legal fees incurred by the mortgagee in an unsuccessful motion to add her spouse, Rod Byrnes, to the action.

The Master clarified an earlier misunderstanding regarding the application of Rule 64 (Mortgage Actions) and applied Rule 1.04 (proportionality).

The Master found it inappropriate to grant full indemnity for costs of a motion lost by the lender and for initiating a second action against a party who was subsequently dismissed with no costs.

An overall net credit of $6500 was fixed to be repaid to Juleth Dawson.

The plaintiffs moved for an order granting additional time to set their medical malpractice action down for trial, five years after its commencement.

The motion proceeded as a status hearing under Rule 48.14, requiring the plaintiffs to show cause why the action should not be dismissed for delay.

The court considered the explanation for delay, the alleged non-compensable prejudice to the defendants, and the overarching principle of resolving disputes on their merits.

The court found the plaintiffs provided a reasonable explanation for the delay, particularly given the complex medical issues, the death of the lead plaintiff, and difficulties in securing expert evidence.

The court was not convinced that the defendants would suffer non-compensable prejudice.

The motion to extend time was granted, and a timetable was to be established.

The plaintiffs brought a motion to strike several paragraphs from the defendant insurer's statement of defence.

The plaintiff pedestrian was struck by a motor vehicle and suffered catastrophic injuries.

The insurer, added as a defendant, pleaded that the collision was an intentional act in self-defence and included allegations about the plaintiff's past criminal record, gang affiliation, and drug involvement.

The court found these allegations to be irrelevant evidence that improperly cast a derogatory light on the plaintiff's character.

The court struck the offending paragraphs under Rule 25.11, concluding that their prejudicial effect outweighed any potential probative value.

The plaintiffs, promoters of a wind farm project, brought a motion to compel answers to questions and production of documents refused by the Crown during examinations for discovery.

The plaintiffs alleged that the Crown's refusal to issue a Renewable Energy Approval was due to bad faith political interference during the 2014 provincial election.

The Crown argued the questions were res judicata and the documents were not in its control or were protected by Cabinet privilege.

The Master granted the motion, finding the issues were not res judicata, the documents were relevant and within the Crown's control, and the public interest in disclosure outweighed any claim of Cabinet privilege.

The moving party defendants brought a motion to vacate a Certificate of Pending Litigation (CPL) that had been registered against a commercial property.

The CPL was originally granted ex parte to Olympia Trust Company, but was never registered.

Instead, a new entity, Bald Eagle Inc., which was never formally added as a plaintiff, obtained and registered a CPL.

Relying on a recent related decision confirming the validity of the underlying mortgage sale, and noting the procedural irregularities in obtaining the CPL, the Master granted the motion and ordered the CPL vacated forthwith.

The plaintiffs brought a motion in 2019 to enforce a judgment obtained in 1997, seeking a further accounting from the judgment debtor and leave to examine third parties in aid of execution.

The court found that the plaintiffs' extreme delay constituted laches and that any potential claims against the third parties were statute-barred under the Limitations Act, 2002.

The court dismissed the request to examine third parties but ordered the self-represented judgment debtor to re-attend an examination to answer specific questions on a best efforts basis.