H.R. Bennett

In a case conference endorsement, the court addressed two procedural issues: the plaintiffs' request for all defendants to attend judicial mediation in person, and the defendants' request for leave to bring a motion to resolve approximately 150 discovery objections made under Rule 34.12.

The court declined to compel attendance at mediation, noting that sophisticated commercial parties should negotiate such matters themselves.

Regarding discovery objections, the court denied leave for a pre-trial motion, emphasizing the principles of proportionality, efficiency, and affordability articulated in Hryniak v Mauldin.

The judge stressed that rulings on admissibility under Rule 34.12 are best made by the trier of fact at trial or summary judgment, and that counsel should focus on material objections rather than engaging in expensive interlocutory motions.

An extension for setting the action down for trial was granted by consent.

The defendants brought a motion to compel the plaintiffs to answer approximately 58 refusals arising from an examination for discovery.

The underlying action involves claims of breach of a dealership agreement, trademark infringement, and false warranty claims.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure.

The court ordered the plaintiffs to make further inquiries regarding a specific networking trip and to produce targeted reports related to alleged false warranty claims, but dismissed the defendants' requests for broader electronic searches and financial records as disproportionate.

Following a successful motion by the plaintiffs to compel the defendants to answer undertakings and refusals, the court determined the appropriate costs award.

The plaintiffs sought $35,000 representing 70% of their full indemnity costs, while the defendants argued the parties should bear their own costs or pay $5,000.

The court found no basis to depart from the general rule that costs follow the event, but declined to award costs on a substantial indemnity scale as the defendants' conduct was not reprehensible.

The court fixed costs at $26,000 payable by the defendants to the plaintiffs.

The Plaintiffs brought a motion to compel the Defendants to answer undertakings, questions taken under advisement, and refusals from examinations for discovery, and to serve a further affidavit of documents and re-attend discovery.

The Master, applying principles of proportionality and relevance, granted most of the Plaintiffs' requests, ordering the Defendants to provide specific information and documents related to warranty claims, alleged trademark/copyright infringement damages, corporate affiliates, sales data, and customer information.

Some requests were dismissed as disproportionate or already addressed.

The Master also ordered the Defendants to provide outstanding Lawyer's Certificates and re-attend discovery.

During a defamation trial, the plaintiff brought a motion to read into the record an affidavit sworn by a deceased witness.

The defendants opposed the motion, arguing the affidavit was inadmissible hearsay.

The court applied the principled exception to the hearsay rule, finding that the affidavit met the requirement of threshold reliability.

The motion was granted, and the affidavit was admitted with a mid-trial instruction to the jury regarding its weight.

In a commercial landlord–tenant dispute concerning a hair salon lease, the tenant moved to amend or vary a prior interlocutory order requiring monthly payments into court toward disputed additional rent arrears.

The action had been set down for trial, raising a question whether leave was required under Rule 48.04 of the Rules of Civil Procedure.

The court held that leave was unnecessary in the circumstances, and alternatively granted leave.

Applying Rule 59.06(1), the court found the earlier order had not adjudicated the scenario where trial would occur after lease termination and amended the order so that the tenant’s $4,000 monthly payments into court terminated on July 31, 2013.

The tenant was awarded $10,000 in costs.

A bank sought summary judgment to enforce a personal guarantee provided by a spouse of the principal of a borrowing company.

The guarantor cross‑moved for summary judgment declaring the guarantee unenforceable after the lender repeatedly replaced and expanded loan agreements without notifying or obtaining consent from the guarantor.

The court held that the successive loan agreements materially altered the risk assumed under the guarantee and that the guarantor, as an accommodation surety, was entitled to notice and consent for such variations.

Because the lender failed to obtain a fresh guarantee or consent when the loan facility increased and prior agreements were terminated and replaced, the guarantee was unenforceable.

Summary judgment was granted in favour of the guarantor and the lender’s motion against her was dismissed.