Ellen Brohm

The appellant appealed an order dismissing his application to challenge the validity of his deceased mother's will.

The motion judge dismissed the application because the appellant failed to comply with a previous order requiring him to serve a notice of change of solicitor or a notice of intention to act in person within 30 days.

The Court of Appeal held it had jurisdiction to hear the appeal, as the dismissal was a final order.

The Court found no error in the motion judge's exercise of discretion to dismiss the proceeding under Rule 15.04(9) given the appellant's pattern of delay and non-compliance.

The appeal was dismissed.

In an action concerning an alleged conspiracy to deprive the plaintiff of her share of her late father's estate, the plaintiff moved for further production of pre-2004 medical records from the defendant doctor and the federal government regarding her father's shock therapy in 1969 or 1970.

The defendant Birch also moved to compel the plaintiff to answer a refusal to obtain records from Bell Canada regarding an alleged wiretap.

The court dismissed all motions, finding the plaintiff's production requests lacked relevance and violated the principle of proportionality, and that Birch's motion for Bell Canada records was also disproportionate given the minimal relevance and alternative remedies available.

Following a motion to set aside an ex parte injunction preventing the repatriation of an incapacitated individual to the United Kingdom for medical care, the successful party sought costs.

The court considered whether costs should be awarded on a full, substantial, or partial indemnity basis under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court found the moving party on the set‑aside motion was the successful party and that the circumstances justified substantial indemnity costs due to the expense incurred responding to the ex parte order and issues relating to disclosure.

However, the claimed amount was reduced to reflect proportionality and efficiency concerns, including duplication of work by counsel.

Substantial indemnity costs of $10,000 all‑inclusive were awarded.

In a construction dispute over a roofing contract, the plaintiff contractor sought payment of an outstanding balance while the defendants counterclaimed alleging defective workmanship and water damage.

During trial, a voir dire was conducted to determine the admissibility of defence expert reports served after a court‑ordered deadline and partially based on destructive testing conducted outside the presence of the plaintiff’s expert.

The court granted leave to admit a late-served expert report concerning building design because the delay caused no prejudice and did not delay the trial.

However, the court excluded opinion evidence derived from destructive testing performed after the plaintiff’s expert had left the premises, finding the testing occurred contrary to a prior court order requiring the plaintiff’s expert to be able to attend.

The court held that the probative value of such evidence was outweighed by its prejudicial effect due to the unfairness created by unilateral testing.