Gregory Dimitriou

The plaintiff appealed a master's decision dismissing its motion under Rule 32.01 for intrusive testing on the defendant's adjacent property to investigate environmental contamination.

The master found that the proposed testing would not be probative because the plaintiff's construction had already altered the soil and groundwater conditions, and that the prejudice to the defendant outweighed any benefit.

The Superior Court of Justice dismissed the appeal, finding no error of law or palpable and overriding error of fact in the master's exercise of discretion.

The plaintiff, a condominium developer, brought a motion under Rule 32.01 for an order allowing its expert to conduct invasive soil and groundwater testing on the defendants' adjacent property, which operated a dry-cleaning business.

The plaintiff alleged the defendants' property was the source of chlorinated solvent contamination found on its lands.

The court dismissed the motion, finding that the proposed testing would not be probative because the plaintiff's extensive excavation and construction had irrevocably altered the subsurface conditions.

The court also applied the equitable doctrine of laches, noting the plaintiff's unreasonable delay in seeking the inspection prejudiced the defendants.

The plaintiff sought to compel answers to undertakings from non-party Eric Grossman and Mass Fidelity Inc., and to compel non-party David Donahue to attend an examination in aid of execution to enforce a judgment against Mass Fidelity Inc. The court dismissed the motion to compel Grossman's undertakings, finding the plaintiff breached the implied undertaking rule by using examination evidence to commence a new action without leave.

The motion to compel Mass Fidelity Inc. to answer Grossman's undertakings was dismissed as Grossman was not an officer or director.

The motion to compel Donahue's attendance was dismissed because the plaintiff had not yet examined the judgment debtor, Mass Fidelity Inc., or its principal, Neil D'Souza, thereby failing to exhaust all available means before seeking to examine a stranger to the litigation.

The plaintiff brought a motion for summary judgment for amounts owed pursuant to a written employment agreement, amending agreements, and a personal guarantee signed by the CEO.

The court found that the CEO was personally liable for unpaid salary and expenses under the personal guarantee, but not for termination pay or vacation pay.

The corporate defendant was found liable for all amounts.

Summary judgment was granted against the defendants jointly and severally for unpaid salary and expenses, and against the corporate defendant for the separation payment and vacation pay.

This endorsement summarizes the conclusions of an initial case conference, directing the parties to prepare a consent order to convert an application into an action.

The order is to outline the filing of pleadings, the use of existing affidavits and cross-examinations in lieu of discoveries, the exchange of affidavits of documents, and a case timetable.

The endorsement also addresses the responding parties' desire to bring a summary judgment motion on a limitation issue, advising them to assess its potential to substantially shorten or simplify a trial versus the risk of unnecessary delay.

The plaintiffs sued the defendants for defamation.

The defendants counterclaimed for abuse of process and added John Magno, the plaintiffs' brother, as a defendant by counterclaim.

John Magno brought a motion under Rule 21.01(1)(b) to strike the counterclaim against him.

The court found that the counterclaim disclosed no reasonable cause of action against John Magno because he was not a plaintiff in the main action and had not initiated any legal process against the defendants.

The counterclaim against John Magno was struck without leave to amend.

The defendants brought a motion under Rule 25.10 of the Rules of Civil Procedure seeking further particulars of allegations in a statement of claim arising from an alleged oral agreement for consulting building services.

The moving parties sought additional documentation relating to invoices from consultants and proof of payments made by the plaintiff.

The court reviewed the governing principles on ordering particulars, emphasizing that particulars are required only when the information is not within the requesting party’s knowledge and is necessary to enable a responsive pleading.

The court held that the plaintiff had already provided sufficient particulars through a detailed invoice attached to an affidavit and that the additional documents requested constituted evidence rather than particulars.

The motion was dismissed and the defendants were ordered to deliver their statement of defence.