Harvey S. Dorsey

The defendants brought a motion to strike affidavits filed by counsel for the plaintiff after cross-examination on an earlier affidavit.

The court held that the subsequent affidavit constituted an improper attempt to repair or explain earlier evidence following cross-examination, effectively amounting to a belated re‑examination contrary to subrule 34.11(3) of the Rules of Civil Procedure.

The court emphasized that re‑examination must occur immediately following cross‑examination and declined to dispense with the rule under Rule 2.03 because no justification was provided.

The June affidavit was struck, while a second affidavit from another lawyer was disregarded as unnecessary and duplicative of an existing transcript.

The applicant mortgagee sought clarification of amendments to a Restraint and Management Order relating to property subject to ongoing criminal forfeiture proceedings.

The court reconsidered wording from an earlier decision and modified several provisions governing access to the property and the scope of available mortgage enforcement remedies.

The court confirmed that the mortgagee could pursue remedies including foreclosure, power of sale, judicial sale, and possession, while revising language concerning access facilitated by the property manager.

The court declined to require that all sale proceeds be paid into court at this stage, finding such an order premature given the unusual procedural context.

The endorsement further directed that all proceedings affecting the property be brought before the same judge to avoid fragmentation.

The appellant defendant appealed a Master's order dismissing his motion to stay the action on the basis of forum non conveniens, arguing that Zambia was the appropriate forum.

The Divisional Court first determined that the standard of review for a Master's final discretionary order is one of deference, not correctness.

Applying this standard, the court upheld the Master's findings that the appellant had attorned to Ontario's jurisdiction by filing a statement of defence and counterclaim, that Ontario had a real and substantial connection to the conspiracy claims, and that the appellant failed to clearly establish that Zambia was the more appropriate forum.

The appeal was dismissed.