Fernando Souza

The Moving Defendants (original defendants and proposed individual defendants) brought a motion seeking answers to refused questions from plaintiffs' witnesses and directions for the examination of a Vancouver-based witness, Mr. Hui, insisting on an in-person examination in Toronto.

The court ordered Mr. Hui's examination to proceed by video conference, citing proportionality and the objectives of the Rules of Civil Procedure.

Regarding the refused questions, the court ordered the production of complete contracts referenced by the plaintiffs but denied requests for general contractor contracts, KPMG's full file, and particulars of services from other contractors, deeming them disproportionate or irrelevant to the narrow issues of the motion to amend.

Costs were awarded to the plaintiffs, fixed at $4,000.00.

A motion was brought seeking various forms of disclosure and re-attendance at discovery.

Some matters were resolved by consent, including a defendant municipality serving a supplementary affidavit of documents and a representative attending discovery for up to 2 hours.

The court addressed the requirement for leave to bring the contested parts of the motion, denying leave for most requests as they did not fall under Rule 48.04(2)(b).

For the remaining contested relief concerning a co-defendant's supplementary affidavit, the court declined to order it as the co-defendant agreed to comply with their obligations.

The scope of the municipality's re-attendance was limited to documents in the supplementary affidavit.

The court also ordered the moving party to pay installment costs thrown away for amendments to the statement of claim to the responding parties.

The defendant brought a motion to compel a representative of the plaintiffs to answer an undertaking arising from an examination for discovery regarding which Vitullo family member or related entity held an interest in a real estate brokerage connected to the transaction at issue.

The underlying action involved a claim for specific performance of a real estate transaction and a counterclaim alleging undisclosed conflicts of interest involving the broker and familial relationships.

The moving party argued the shareholding information was relevant to a pleaded conflict-of-interest allegation.

The responding party contended the question was irrelevant and that no undertaking had been given.

The court held the information was relevant to the pleadings and ordered the witness to provide the requested undertaking.

Following a motion concerning the vacating of construction liens upon posting reduced security, the moving parties sought partial indemnity costs of approximately $7,700.

The court considered the circumstances of the motion, including short service of the original motion, the fact that the ultimate relief ordered differed from the relief originally sought, and the novelty of the reduced-security structure proposed under the Construction Lien Act.

The court found the responding lien claimants’ opposition to be reasonable and noted that alternative statutory mechanisms were available to the moving parties without requiring the motion.

Given the mixed success and the conduct of the moving parties, the court declined to award costs.

The defendants brought a motion seeking leave and an order requiring a corporate plaintiff to post security for costs in a construction lien action.

Although the court accepted that the defendants had established grounds under Rule 56.01(1)(d) of the Rules of Civil Procedure and that the plaintiff had not proven impecuniosity with sufficient evidence, the court exercised its discretion to refuse security for costs.

The motion had been brought after significant unexplained delay, the defendants had not complied with earlier court-ordered undertakings, and their counterclaims arose from the same facts and were substantially larger than the plaintiff’s claim.

These factors militated against granting security for costs.

The motion was therefore dismissed.

Mortgagees brought a motion under ss. 44(2) and 78 of the Construction Lien Act seeking to vacate five construction liens from title to condominium units by posting alternative security.

The development consisted of 26 commercial condominium units, most of which had already been sold, while five units remained unsold.

Lien claimants argued that security equal to nearly the full amount of the liens should be posted in cash from sale proceeds.

The court held that the mortgagees’ proposal—posting partial cash security while leaving the liens on title to the remaining unsold units—provided more than adequate combined land and cash security and better preserved potential equity by reducing mortgage debt and accumulating interest.

The court ordered the liens vacated from the sold units upon posting security while remaining on the unsold units pending further order.

The plaintiff brought a motion under Rule 34.15 of the Rules of Civil Procedure seeking an order compelling the defendant contractor to answer certain undertakings and refused questions arising from an examination for discovery.

The disputed questions concerned information about bonuses allegedly paid by the project owner to the contractor for work performed by the plaintiff subcontractor.

The defendant argued that the bonus issue constituted a new claim improperly raised in the plaintiff’s reply rather than the statement of claim and therefore refused to answer discovery questions on the topic.

The court held that the bonus issue formed part of the existing pleadings and that any challenge to the adequacy of the pleading should have been brought by motion to strike or amend.

The questions were relevant to the issues as pleaded and were ordered to be answered within a specified time.