2 total
Failure to disclose related litigation evidence did not justify discharging certificate of pending litigation.
The defendant brought a motion under s. 103(6) of the Courts of Justice Act and Rule 42.02 of the Rules of Civil Procedure seeking to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte basis.
The defendant argued the plaintiff failed to make full and fair disclosure of material facts, particularly information arising from pleadings, testimony, and evidence in a related action involving the same parties and a real estate transaction.
The court held that the alleged omissions were not material to the decision to grant the CPL and that the plaintiff had adequately disclosed the defendants’ position regarding the alleged repayment of a $600,000 deposit.
Evidence from the related litigation and a text message referencing repayment did not contradict the plaintiff’s disclosure that the defendants claimed repayment while the plaintiff did not know whether the claim was true.
The court concluded the plaintiff had met the obligation of full and fair disclosure required for ex parte CPL motions.
Hearsay statements of two absent witnesses excluded due to inadequate efforts to locate them for trial.
The prosecutor sought to admit written statements from three absent tenants during a trial for Fire Code violations regarding an alleged illegal rooming house.
The court applied the principled exception to the hearsay rule, assessing necessity and reliability.
The court found all statements met the reliability threshold, but only one met the necessity threshold because the prosecutor failed to make adequate efforts to locate and subpoena the other two witnesses.
Consequently, one statement was admitted and two were excluded.
