D. Rutherford

The College moved to schedule cross-examinations and a motion before a single judge to quash a physician's appeal of his license revocation, alleging he breached an order lifting a stay by continuing to practice.

The physician moved for an expedited appeal date.

The court declined to schedule the College's motion before a single judge, finding that lifting a stay does not constitute an order that can be breached under Rule 60.12, and directed that the motion to quash be heard by the full panel hearing the appeal.

The court scheduled the appeal and granted a sealing order for third-party medical records.

The plaintiff estate appealed a Master's order dismissing its action for delay.

The action, concerning a $185,000 debt, had seen little progress for over four years.

During this inexcusable delay, three key witnesses for the defendants died, including the father of the defendant who allegedly acted as the deceased's agent.

The Divisional Court upheld the Master's finding that the delay was inordinate, inexcusable, and caused substantial prejudice to the defendants' ability to defend the claim.

The appeal was dismissed.

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The defendant employer brought a motion for leave to appeal an order refusing to strike out the statement of claim against it.

The employer argued that at common law, an employer cannot be impleaded by an employee seeking a remedy for their union's breach of the duty of fair representation.

The court dismissed the motion, holding that the common law is dynamic and a plaintiff should not be denied the possibility of establishing a right to a remedy at the pleadings stage.