Jay Josefo

The plaintiff and defendants brought various motions in a motor vehicle accident tort claim.

The plaintiff sought to compel answers to a refused discovery question regarding the defendant Uhaul's pre-litigation investigation.

The court dismissed this request, finding the investigation was protected by litigation privilege as its dominant purpose was in contemplation of litigation.

The defendants Uhaul and Manbauman sought leave to amend their Statements of Defence to allege that the plaintiff and his brother engaged in a staged collision for insurance fraud, based on surprising discovery evidence from Manbauman.

The court granted leave to amend, finding no non-compensable prejudice to the plaintiff.

The plaintiff moved to set aside an October 31, 2024 registrar's order dismissing her action for delay under Rule 48.14.

The action was commenced in June 2018 and had not been set down for trial within the five-year deadline.

The court found that the plaintiff failed to meet the test for setting aside the dismissal order, having provided no satisfactory explanation for the delay, failed to move forthwith after the dismissal, and failed to establish that the defendants would not suffer prejudice.

The court noted the plaintiff's pattern of resistance to court directions, her deliberate delay in bringing the motion, and her conduct in attempting to circumvent proper procedure.

The motion was dismissed and the action remains dismissed.

In a wrongful dismissal action, the plaintiff sought a timetabling order for a pending motion and an order to examine the defendant's CEO as a witness on that motion under Rule 39.03.

The defendant's pending motion sought to substitute another corporate representative for discovery, arguing that examining the CEO would be oppressive.

Associate Justice Josefo declined to issue a timetabling order, noting that counsel should cooperate or rely on the timelines in the Rules of Civil Procedure.

The court also refused the request to examine the CEO, finding it to be an abuse of process and an attempt to circumvent the very issue to be decided in the upcoming substitution motion.

The defendant, Krandel, brought a motion seeking leave to issue a counterclaim *nunc pro tunc* against Dianne Herzog in her personal capacity, add her as a defendant to the counterclaim, and extend the time for service.

The original counterclaim, filed in a professional negligence action, was delivered but not properly issued or titled against Dianne Herzog personally, who was not an original party.

The limitation period for the counterclaim had expired.

The court granted the motion, finding that Dianne Herzog had actual knowledge of the counterclaim before the limitation period expired, thereby rebutting the presumption of prejudice.

The court emphasized that denying the motion would be a greater injustice and that the case was still in its early stages, making the regularization of the pleading consistent with the overarching principle of civil litigation to determine proceedings on their merits.

The plaintiff initiated an action against "Can-Sure Underwriting" a managing general agent, for an insurance coverage dispute, mistakenly believing it to be the insurer.

The plaintiff brought a motion to correct this misnomer by adding the actual subscribing insurers as defendants.

Concurrently, the defendant moved for summary judgment, arguing the claim was time-barred by a one-year contractual limitation period and that it was not the proper defendant.

The court dismissed the defendant's summary judgment motion, finding a genuine issue for trial regarding promissory estoppel, as the defendant's agent had previously advised the plaintiff of a two-year limitation period, leading to reliance.

The court granted the plaintiff's misnomer motion, concluding that the intended defendants (subscribing insurers) had actual knowledge of the claim from its inception and suffered no prejudice from the delay in formal naming, especially given the contradictory information provided by the defendant.

The defendants, Borden Ladner Gervais LLP and Robb McNaughton, brought a motion to stay an Ontario action initiated by the plaintiff, Pesorama Inc., on the basis of forum non conveniens.

The defendants argued that a forum selection clause in the retainer agreement between the parties stipulated Alberta as the exclusive jurisdiction for disputes.

The court applied the two-step test for enforcing forum selection clauses, finding the clause valid, clear, and applicable.

It determined that Pesorama Inc. failed to demonstrate "strong cause" to override the clause, particularly given the sophisticated nature of the parties and the commercial context of the dispute.

The court also noted the ongoing taxation process in Alberta and the inefficiency of parallel proceedings.

The motion was granted, and the Ontario action was stayed, allowing the plaintiff to pursue its claim in Alberta.

The defendants, Mattamy Corporation, brought a motion seeking an order to compel the plaintiffs, Wendy Wang and W. Li, to attend an examination in aid of execution to collect outstanding costs totaling $22,282.84 from previous successful motions and appeals.

The plaintiffs, who were self-represented, had refused to attend prior examinations or pay the costs, attempting to re-litigate the merits of their original action.

The court dismissed the plaintiffs' procedural objections and, despite reservations about proportionality given the relatively small amount and the concluded nature of the underlying litigation, granted the order compelling the plaintiffs' attendance.

The decision was influenced by the plaintiffs' defiance of court orders and their continued pursuit of the same issues in other forums.

However, the defendants' request for costs of the current motion was denied due to their failure to serve a costs outline on the plaintiffs as required by the Rules of Civil Procedure.

The plaintiffs brought a motion to remove the defendants' counsel and their law firm from the record for an upcoming pending motion.

The plaintiffs argued that because partners of the law firm had sworn affidavits for the pending motion, the firm's continued representation created a conflict of interest and an appearance of impropriety.

The court dismissed the motion, finding it premature and noting that the practice of lawyers appearing on motions where their colleagues have filed affidavits is common and acceptable in Ontario civil litigation.

The court awarded costs of $11,580 to the defendants.

The plaintiff, a real estate broker, brought an urgent motion for a Certificate of Pending Litigation (CPL) on a pre-construction property after the defendant developer terminated the Agreement of Purchase and Sale.

The developer terminated the agreement upon discovering the plaintiff had submitted a false mortgage approval letter.

The court dismissed the motion, finding that while the plaintiff might have a triable interest in land, the property was not unique and damages would be an adequate remedy.

Crucially, the court held that the plaintiff did not come to court with clean hands, as he had tendered an admittedly false document, and thus was not entitled to equitable relief.

The defendants brought a motion to remove the plaintiff's lawyer and his law firm as counsel of record, arguing that the lawyer would be a necessary witness at trial regarding allegations of interference with economic relations.

The court dismissed the motion, finding it highly doubtful that the lawyer would be a necessary witness on a material issue.

The court concluded the motion was premature and brought mainly for tactical reasons, driven by one defendant's strong antipathy toward the lawyer.

The plaintiff brought a motion to compel the 90-year-old defendant to complete his oral examination for discovery via Zoom.

The defendant opposed, citing advanced age, health issues, and alleged misconduct by plaintiff's counsel during the initial discovery.

The court found the medical evidence to be unpersuasive hearsay and rejected the allegations of counsel misconduct as scandalous and unsupported by the transcript.

The court held that the defendant failed to meet the high onus required to be excused from oral discovery and ordered the examination to resume with accommodations.

The plaintiff brought a motion to amend the statement of claim to add Wynn's Property Maintenance Ltd. as a defendant in a slip and fall action, and initially sought to add two other corporate entities but abandoned that request.

Wynn's opposed the motion, arguing the limitation period had expired.

The court found that the claim against Wynn's was discovered on February 4, 2019, when the plaintiff's counsel was informed of Wynn's identity.

Due to the suspension of limitation periods under the Emergency Management and Civil Protection Act, the motion was brought within time, and leave to add Wynn's was granted.

The court also awarded $3,500 in costs to the two corporate entities that the plaintiff abandoned its motion against, finding the plaintiff failed to conduct proper due diligence before seeking to add them.

The plaintiff brought a motion to amend her Statement of Claim to substitute Saint Elizabeth Health Care for the originally named defendant, Toronto Community Care Access Centre, after the expiry of the limitation period.

The plaintiff relied on the doctrine of misnomer, arguing that the proposed defendant was always the intended target and had received notice letters within the limitation period.

The court granted the motion, finding that the proposed defendant would have known it was the intended target upon reading the claim, and that there was no actual prejudice to justify refusing the amendment.

The defendants in a solicitor's negligence action brought a motion to compel the plaintiffs to fulfill an undertaking to produce the underlying litigation files from a settled will challenge.

The plaintiffs argued the files were protected by solicitor-client privilege and were not in their possession.

The court held that by suing the defendant lawyer for negligence and claiming the costs of the will challenge as damages, the plaintiffs had impliedly waived solicitor-client privilege over the underlying files.

The court ordered the plaintiffs to fulfill the undertaking, as the files were necessary for the defendants to assess the reasonableness of the damages claimed.

The plaintiff brought a motion under Rule 48.14 for an extension of time to set the action down for trial.

The action arose from a 2014-2015 sub-tenancy dispute.

The case had stalled since early 2017 because the plaintiff failed to answer undertakings from discoveries.

The court found the plaintiff's explanations for the delay—including the death of a principal, counsel's injury, and the COVID-19 pandemic—to be vague and unsatisfactory given the length of inactivity.

Presuming prejudice to the defendants due to the passage of time, the court dismissed the motion and dismissed the action for delay.

The defendants/plaintiffs by counterclaim brought a motion to further extend the peremptory set-down deadline of December 31, 2019.

The responding parties opposed the extension and sought to dismiss the action for delay.

The court found that the moving parties had deliberately failed to comply with the peremptory order and had not demonstrated any exceptional circumstances to justify varying it.

The motion for an extension was dismissed, and the court directed the Registrar to dismiss the action for delay.

The plaintiff in a wrongful dismissal action brought a motion for a further and better Affidavit of Documents, challenging the defendant's claims of solicitor-client and litigation privilege over certain internal emails.

The plaintiff had previously received an anonymous package of the defendant's documents, which she reviewed before returning.

The court reviewed the contested documents and found that they were all protected by either solicitor-client privilege, as part of the continuum of legal advice, or litigation privilege, having been created for the dominant purpose of anticipated litigation following the plaintiff's termination.

The motion was dismissed, and the documents were not ordered to be produced.

The defendants moved for security for costs under Rule 56.01(1)(e), arguing the plaintiff's claim for a one-half interest in their property based on proprietary estoppel was frivolous and vexatious.

The plaintiff cross-moved to strike the defendants' affidavits and opposed their motion to amend their pleadings to add a limitations defence.

The court dismissed the plaintiff's cross-motions, allowed the defendants to amend their pleadings, and granted the motion for security for costs, finding the plaintiff's claim lacked practical merit and her conduct in the litigation was vexatious.

The parties engaged in a long-running dispute over two oil field joint ventures in Egypt.

Following multiple prior court decisions across Canada, a reference was held to conduct an accounting and valuation of the applicants' interest in the joint venture.

Relying on a joint neutral expert, the court determined the financial calculations.

The court also held that a 500% penalty clause for failing to make a cash call, drafted by the applicant, was an enforceable genuine pre-estimate of damages rather than an unenforceable penalty.

Ultimately, the applicants were ordered to pay the respondents $331,087.33.

The plaintiffs hired the defendant moving companies for a household move from Ontario to New Brunswick.

After loading the goods, the defendants demanded a flat rate significantly higher than the initial estimate and refused to deliver the goods until paid.

The plaintiffs brought an urgent motion under Rule 44 of the Rules of Civil Procedure for the return of their personal property.

The court found substantial grounds that the goods were unlawfully detained, noting the defendants' actions breached the Consumer Protection Act.

The motion was granted, with the plaintiffs ordered to pay $1,850 for the partial move, which was entirely set off by a $1,850 costs award against the defendants.