Harold Rosenberg

The plaintiffs brought a motion to strike several paragraphs from the defendants' statement of defence and counterclaim under Rules 25.06(1) and 25.11.

The court struck portions that pleaded evidence rather than material facts, or were scandalous and vexatious.

However, the court retained paragraphs that properly pleaded material facts regarding consent and contributory negligence.

The plaintiffs were awarded costs of $4,500.

The plaintiffs obtained an ex parte Mareva injunction freezing the assets of the defendant, a former senior manager who allegedly misappropriated funds and started a competing business.

On the return of the motion, the court reviewed the evidence de novo.

The court found that the plaintiffs failed to establish a strong prima facie case of fraud, as the defendant provided reasonable explanations for the impugned credit card charges and tax defaults.

Furthermore, the defendant's decision to sell his home was made prior to being served with the claim and was for the purpose of downsizing, not dissipating assets.

The Mareva injunction was set aside.

The plaintiff brought a motion to amend its statement of claim to add SH Pan Transport Inc. as a defendant in an action for damaged freight.

SH Pan argued the motion was statute-barred as the two-year limitation period had expired.

The court found that the plaintiff exercised reasonable due diligence in relying on the initial defendant's admission that the driver was its employee, and the claim against SH Pan was not discoverable until the initial defendant withdrew that admission at discovery.

The court granted the motion to add SH Pan as a defendant, finding no non-compensable prejudice.

The plaintiffs sued the defendant, a cousin and former employee, for trespass, conversion, and breach of confidence following a theft at their home.

The court found that the defendant, acting in concert with the plaintiffs' housekeeper, used confidential information about the home's security and the location of valuables to enter the home and steal jewelry, cash, and a security system.

The court relied on circumstantial evidence, including extensive phone records between the defendant and the housekeeper, and found the defendant's testimony lacked credibility.

The defendant was held liable and ordered to pay compensatory damages for the stolen items and $5,000 in punitive damages.

The plaintiffs sued the defendant portfolio managers for investment losses, alleging misrepresentation, negligence, and breach of fiduciary duty.

The defendants moved for summary judgment, arguing the claims were statute-barred and barred by a prior release.

The court dismissed the motions, finding that the limitation period did not begin to run while the plaintiffs reasonably relied on the defendants' assurances that the losses were due to market conditions, and that the release did not apply to claims that were unknown and not in the contemplation of the parties at the time it was signed.

The defendants and the plaintiff brought cross-motions regarding whether the plaintiff's daughter could attend the plaintiff's cross-examination as a moral support person.

The underlying action involved allegations of elder abuse and a disputed property transfer.

The court found that while a support person could be appropriate given the plaintiff's age and anxiety, the daughter was not an appropriate person.

Because the plaintiff lived with the daughter and might feel pressured to tailor her evidence to please her caregiver, the daughter's presence would create a danger of substantive unfairness.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

Unsecured judgment creditors sought an order under s. 163(2) of the Bankruptcy and Insolvency Act to examine an individual in his personal capacity and as director of a related corporation regarding the administration of a bankrupt estate.

The court applied the low threshold test for examinations under the BIA, requiring evidence that the proposed examination may yield information relevant to the administration of the estate and that the proposed examinee likely possesses such information.

Evidence raised questions about whether accounts receivable belonging to the bankrupt were paid to the individual or transferred to a related corporation while the bankrupt was insolvent.

The court found sufficient cause to permit the examination and ordered document production.

Costs were awarded to the moving creditors.

In complex multi-party litigation involving competing applications and actions, the moving parties sought advance production of documents prior to cross‑examinations on affidavits and before the close of pleadings.

The court rejected the argument that counsel had reached a binding agreement requiring early documentary production and held that no such agreement existed.

The court further held that under the Rules of Civil Procedure, affidavits of documents are generally not required until after pleadings close, absent exceptional circumstances where production is essential to plead.

Motions to disqualify counsel were not equivalent to summary judgment proceedings and therefore did not justify early disclosure.

The court denied the request for advance production and issued directions governing examinations and interim injunctive relief pending further motions.

A defendant brought a motion to dismiss an action alleging fraudulent conveyance and to discharge a certificate of pending litigation registered against a matrimonial home.

The moving party argued that the claim was barred by a prior full and final release executed after settlement of related debts.

The court held that interpretation of the release required consideration of the surrounding circumstances and could not be determined without a trial, so dismissal of the action was refused.

However, the court found that the release was a material fact that should have been disclosed when leave to register the certificate of pending litigation was obtained.

Because of this non-disclosure, the certificate of pending litigation was discharged.