Gordon A. Marsden

This motion concerned the certification of a class action arising from a fire at a self-storage facility.

The plaintiff sought to certify a class proceeding on behalf of tenants who lost property, claiming damages in contract, tort, and unjust enrichment.

The court certified the action, finding that four of the five certification requirements under the Class Proceedings Act, 1992 were met.

Most proposed common issues related to negligence, limitation of liability, assignment of leases, and punitive damages were certified, while issues regarding prejudgment interest and unjust enrichment for retained advance rental payments were not.

No costs were awarded due to the parties' cooperation and the substantial revision of issues.

The defendant insurer brought a motion to amend its statement of defence to allege that the plaintiffs committed arson and fraud, eight years after the fire that destroyed the plaintiffs' business.

The insurer had originally only pleaded a lack of co-operation.

The court dismissed the motion, finding that the extreme and unexplained delay in seeking the amendment would cause non-compensable prejudice to the plaintiffs, who had lost the opportunity to properly investigate the allegations when the evidence was fresh.

The court also noted concerns regarding the insurer's duty of utmost good faith.

The defendant moved for an order compelling the plaintiff, who resides in British Columbia, to post security for costs in an action alleging historical abuse.

The plaintiff opposed the motion on the basis of impecuniosity.

The court found that the plaintiff had made full and frank disclosure of her financial circumstances, establishing that she was impecunious.

The court also found that the plaintiff's claim, which would largely turn on credibility, was not plainly devoid of merit.

The motion for security for costs was dismissed, with costs of $5,000 awarded to the plaintiff.

The defendants brought a motion to strike a lengthy self-represented statement of claim alleging conspiracy and misconduct by police and public officials.

The plaintiff alleged that police had conducted a long-standing covert campaign of harassment, including tampering with computers, contaminating groceries with chemical hazards, and collaborating with landlords to render him homeless.

The claim against the moving defendants was based on allegations that they failed to investigate complaints about these actions.

The court held that the pleadings disclosed no viable cause of action in law even if the pleaded facts were assumed to be true.

Finding that no amendment could cure the defects and that the allegations were incapable of sustaining a legal claim, the action against the moving defendants was dismissed without leave to amend.

The self-represented plaintiff sued the police for assault, wrongful arrest, and other torts after being apprehended and taken to a hospital for a psychiatric assessment.

The defendants moved for summary judgment.

The court found that the police had reasonable and probable grounds under the Mental Health Act to apprehend the plaintiff, who was exhibiting paranoid and delusional behaviour.

The medical assessment at the hospital confirmed the police's concerns.

The court concluded there was no genuine issue requiring a trial and dismissed the action.

Following a global settlement of claims arising from three motor vehicle accidents, the moving defendants sought to consolidate two actions and amend their pleadings to pursue a crossclaim for contribution and indemnity against another driver and that driver’s insurer.

The court considered Rule 6 of the Rules of Civil Procedure and whether the gateway criteria for consolidation were met.

Because the plaintiff had already executed a full and final release resolving all claims, there were no remaining questions of law or fact between the actions.

The court further held that any contribution and indemnity claim was statute‑barred under the Limitations Act, 2002 because the defendants failed to commence a third party claim within two years of service of the statement of claim.

The motion for consolidation and related relief was therefore denied.

A third party insurer brought a motion seeking dismissal of a crossclaim and third party claim and requesting costs incurred in defending those claims.

The claims had been initiated after the third party insurer initially denied coverage for a motor vehicle accident based on an alleged breach of statutory conditions.

After the third party insurer clarified its position that coverage was denied only because the driver lacked consent, the claims were discontinued by agreement.

The court held that the claims were not frivolous or vexatious when commenced because they were prompted by the insurer’s earlier denial of coverage.

The motion for costs by the third party insurer was dismissed, and the opposing insurer was awarded costs of the motion.

The plaintiffs brought a motion arising from a dental malpractice action seeking a further and better affidavit of documents and leave to conduct a focused continuation of the defendant’s examination for discovery after a specific dental instrument was produced for the first time during discovery.

The court considered the interaction between the 2010 amendments to the Rules of Civil Procedure, including discovery plans under Rule 29.1 and proportionality in discovery under Rule 29.2, and the traditional jurisprudence governing undertakings and follow‑up discovery.

The court held that an examination for discovery is not complete until proper follow‑up questions arising from undertakings or newly produced evidence can be asked.

The defendant was granted leave to amend the defence, and the plaintiffs were permitted a limited further discovery focused on the instrument.

Partial indemnity costs were awarded to the plaintiffs.