E. Durant

The plaintiffs in a medical malpractice action sought leave to amend their statement of claim to substitute two identified physicians for previously named fictitious “Doe” defendants after the expiry of the limitation period.

The court considered whether the substitution constituted correction of a misnomer under Rule 5.04(2) of the Rules of Civil Procedure and s. 21(2) of the Limitations Act, 2002.

Applying the “litigation finger” test, the court held the pleadings sufficiently identified the intended physicians through details of the hospital, department, treatment period, and alleged conduct.

The court found no material prejudice arising from the delay and determined that the plaintiffs had exercised reasonable diligence in attempting to identify the physicians through medical records and inquiries.

Leave to amend and substitute the physicians for the Doe defendants was granted.

Following settlement of an application brought by a condominium corporation to enforce compliance with condominium rules and compel sale of a unit, the only remaining issue was costs.

The corporation sought full indemnity costs exceeding $59,000.

The court reviewed the factors under Rule 57.01 of the Rules of Civil Procedure and s.131 of the Courts of Justice Act, noting the respondent’s prolonged non-compliance with the condominium’s declaration, rules, and by-laws despite repeated warnings.

While recognizing that full indemnity costs were appropriate in condominium enforcement proceedings where owners’ misconduct forces litigation, the court reduced certain claimed fees as excessive.

The court fixed costs on a full indemnity basis at $48,692.09 and ordered that unpaid costs be added to the unit’s common expenses and secured as a lien under the Condominium Act.

Following a motion to enforce a settlement, the court had previously set aside the settlement despite finding a binding agreement, due to prejudice considerations favouring the applicants.

The present endorsement addressed costs arising from that motion.

The court found that the applicants’ lawyers’ deficient record‑keeping, failure to follow minimum practice standards, and unprofessional conduct caused unnecessary litigation costs and made the factual inquiry significantly more difficult.

Applying Rule 57.07(1) of the Rules of Civil Procedure and the principles in Young v. Young, the court concluded that the lawyers’ conduct caused unnecessary costs and warranted a personal costs order.

Costs were therefore ordered personally against counsel on a partial indemnity basis.

The moving party sought to enforce a settlement under Rule 49.09(a) of the Rules of Civil Procedure after receiving an unconditional notice accepting an offer to settle a vexatious litigant application.

The responding parties argued the acceptance was sent by mistake due to solicitor error and did not reflect their instructions, which required settlement of a related defamation action and cost set‑offs.

The court reviewed the contractual principles governing settlements and the discretionary factors for enforcing settlements where solicitor error is alleged.

While the evidence raised concerns about counsel’s record‑keeping and the possibility that the acceptance was intentionally sent, the court ultimately found the delivery of the unconditional acceptance was plausibly an innocent mistake.

Balancing prejudice between the parties, the court concluded that enforcing the settlement would create greater unfairness to the responding parties and declined to enforce it.