Ian P. Katchin

The plaintiffs brought a motion to compel production of confidential financial and Key Performance Indicator data relating to seven non-party Lexus dealerships, which were in the possession of the defendant.

The plaintiffs argued the information was necessary to test the reliability of averages used by the defendant’s expert in calculating the plaintiffs’ alleged loss of profits following termination of a dealership agreement.

The court held that the individual dealer data was not producible under Rule 31.06(3) because the defendant’s expert had not received or relied on that underlying information.

Although the documents were relevant under Rule 30.02 to the issue of loss of profits, the court declined to order production after balancing proportionality and prejudice.

The court found that disclosure would cause significant prejudice to the non-party dealers, whose confidential financial information would be revealed to a direct competitor.

The plaintiffs’ motion was dismissed and costs were awarded to both the defendant and the non-party dealers.

The plaintiffs brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing their action for delay after they failed to set the action down for trial by the deadline imposed in a status hearing timetable order.

The court applied the contextual approach and the Reid factors governing motions to set aside registrar dismissals, including explanation for litigation delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendants.

The court found the missed deadline resulted from counsel’s inadvertence, the motion was brought promptly, and the plaintiffs had provided satisfactory explanations for brief periods of delay.

Although the limitation period had expired, the plaintiffs rebutted the presumption of prejudice and the defendants failed to demonstrate significant actual prejudice.

The registrar’s dismissal order was therefore set aside and a new timetable imposed.

The moving parties sought leave to appeal an order dismissing their appeal from a Master's decision.

The Master had dismissed their motion for a further and better affidavit of documents from the defendant accounting firm, limiting the scope of relevant documents to those relating to the fraud identified in a forensic auditor's report.

The Divisional Court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's order regarding relevance.

Although the motion judge erred in applying an overly restrictive standard of review, this error had no impact on the outcome.