G. Mens

The moving party, Toronto Hydro, sought to set aside an ex parte order extending the time for the plaintiffs to serve their statement of claim.

Toronto Hydro argued that the plaintiffs failed to disclose material facts on the ex parte motion, including the expiration of the limitation period and the lack of notice to Toronto Hydro, and failed to address prejudice.

The court dismissed the motion, finding that no material facts were omitted that would have impacted the original decision.

The court also held that the failure to address prejudice in the supporting affidavit was a matter for appeal, not a ground for setting aside the order under Rule 39.01(6), and that Toronto Hydro suffered no material prejudice as it had recycled the evidence itself prior to the deadline for service.

The plaintiffs brought a motion to compel the defendant, Toronto Hydro, to answer refusals arising from cross-examinations on affidavits filed in support of a motion to set aside an ex parte order extending the time for service of the statement of claim.

The refusals related to an inspection of damaged equipment and an engineering report.

The court found the engineering report was protected by solicitor-client privilege and privilege had not been waived.

However, the court ordered the defendant to disclose who directed the inspection and whether any notes or pictures were taken, with a potential court inspection of documents if privilege is claimed.