Jason W.J. Woycheshyn

The defendants brought a motion under Rule 31.03(2)(a) of the Rules of Civil Procedure seeking an order requiring the plaintiff to examine a different corporate representative for discovery rather than the employee selected by the plaintiff.

The dispute arose in the context of a family and corporate conflict involving claims for wrongful dismissal and oppression under the Business Corporations Act.

The court held that the examining party has a prima facie right to choose the corporate representative to be examined, subject only to limited judicial intervention where the selection is inappropriate or oppressive.

The defendants failed to demonstrate that the chosen employee lacked sufficient knowledge, could not inform himself, or that the examination would be unduly oppressive.

The motion to substitute the witness was dismissed and costs were awarded against the moving parties.

The defendant bank moved to dismiss an action alleging fraudulent and negligent misrepresentation on the basis that the plaintiff breached the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure by using documentary productions obtained in related litigation to commence a separate claim.

The court held that the plaintiff had indeed used documents obtained through discovery in the earlier proceeding to inform and support its decision to initiate the new action, thereby breaching the deemed undertaking rule.

However, considering the substantial overlap in parties, issues, and factual matrix between the two proceedings, and the minimal prejudice to the producing party, the court granted retroactive relief from the rule.

The court dismissed the bank’s motion to dismiss or stay the action but allowed the plaintiff limited permission to use the discovery materials in the new action.

Costs were awarded against the plaintiff due to its failure to seek leave before using the materials and its lack of candour in case management proceedings.

In a Commercial List case conference concerning potential refusals motions, the court addressed whether interlocutory motions to compel answers to refused discovery questions should be scheduled.

The case management judge emphasized the court’s inherent jurisdiction and the proportionality principles in the Rules of Civil Procedure to control litigation and allocate scarce judicial resources.

The court held that a Commercial List case management judge may decline to schedule refusals motions and instead direct that, if a refusal later proves improper at trial, an adverse inference may be drawn against the refusing party.

Such directions may bind the parties at trial unless the trial judge determines otherwise to prevent injustice.

In a complex commercial fraud and negligence action involving multiple defendants, the court issued a case conference memorandum addressing the status of discovery, mediation, expert reports, and pre‑trial procedure.

The court directed timelines for completion of undertakings and remaining examinations for discovery.

It encouraged the parties to consider avoiding refusals motions due to limited judicial resources and proposed an alternative approach allowing trial judges to address refused questions if necessary.

The parties were instructed to advise the court whether they would forego refusals motions or proceed with them.

The court also directed the parties to contact a judge to schedule a lengthy trial and to return for a further case conference if mediation failed.

The defendant bank brought a refusals motion seeking to compel answers to questions asked on the cross‑examination of an affiant concerning documents reviewed by counsel when drafting a claim.

The information sought related to whether the plaintiff had used documents produced in another action in alleged breach of the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure.

The court held that the requested information constituted solicitor‑client communications and was therefore subject to near‑absolute privilege.

The “future crime and fraud” exception to solicitor‑client privilege did not apply because an alleged breach of the deemed undertaking rule did not approach the level of criminal or fraudulent conduct required to displace privilege.

The motion to compel answers was dismissed.

In a Commercial List case conference, the court addressed procedural issues arising during case management of complex banking litigation.

A related action commenced by another party against the plaintiff bank had not been disclosed at an earlier case conference, prompting the court to require an explanation and direct counsel to attend a further appointment to address potential motions and case coordination.

The court also addressed discovery disputes, including requests to examine additional representatives and disagreements about whether discovery rights had been exhausted.

Timetables were set for written motion materials regarding discovery disputes, interrogatories, expert reports, and a forensic accounting report.

The court emphasized the importance of transparency in case management and minimizing interlocutory motions in complex litigation.

The moving party sought advice and directions under a court‑approved CCAA Plan of Arrangement governing the restructuring of Canada’s third‑party asset‑backed commercial paper market.

The administrator argued the Plan and related agreements permitted it to terminate credit default swap transactions and fund termination payments from collateral without dealer consent below specified thresholds.

A dealer noteholder opposed, asserting the agreements required negotiated consent where collateral beyond a specific trade would be affected.

The court held that the contractual language did not eliminate consent requirements and that the court’s broad CCAA jurisdiction could not be used to effectively rewrite the negotiated agreements.

The request for declaratory or corrective relief was refused.

Following a merits decision finding that Coventree Inc. and its senior officers, Geoffrey Cornish and Dean Tai, failed to disclose material changes in breach of the Securities Act, the Ontario Securities Commission held a hearing to determine sanctions and costs.

The Commission emphasized the fundamental importance of timely disclosure to the integrity of capital markets.

While noting mitigating factors such as the respondents' lack of intent to mislead and their cooperation with Staff, the Commission imposed significant administrative penalties to achieve specific and general deterrence.

Coventree was ordered to pay a $1 million penalty and $250,000 in costs, while Cornish and Tai were each ordered to pay a $500,000 penalty and were prohibited from acting as directors or officers of a reporting issuer for one year.

The appellants appealed an order dismissing their motions under Rules 20 and 21 to strike the respondent's claims for constructive dismissal and related torts as statute-barred.

The motion judge had found that the claims could have been discovered before the respondent resigned, potentially triggering the six-year limitation period under the transitional provisions of the Limitations Act, 2002.

The Divisional Court allowed the appeal, holding that a cause of action for constructive dismissal arises only when the employee resigns.

As the resignation occurred in May 2004, the two-year limitation period applied and the claims were statute-barred.

The court also held that the motion judge erred in linking the Rule 20 and Rule 21 motions, and found no triable issue regarding promissory estoppel or acknowledgment of liability.

The appellant appealed an order regarding the interpretation of an insurance policy endorsement.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly resolved the ambiguity in Endorsement II to achieve commercial reality and reflect the reasonable expectations of the parties, rather than applying a strict rule of giving the same words the same meaning which would have rewritten the policy.