Jennifer Mendelsohn

This decision addresses the quantum and payor of costs following the dismissal of the Plaintiff's motion to restore her action to the trial list.

The court fixed partial indemnity costs for the motion and the action, finding the Defendant's claimed hours excessive for a relatively simple motion.

The court declined to award costs personally against the Plaintiff's solicitor, emphasizing that such orders are reserved for extraordinary circumstances and that the Plaintiff's extra-jurisdictional residence or counsel's misstatements are not sufficient grounds.

The plaintiff brought a motion to restore her action, commenced in 2006 for injuries sustained in 2001, to the trial list.

The action had been struck off in 2010 due to the plaintiff's prolonged lack of communication with counsel while residing in Hong Kong.

The court denied the motion and dismissed the action, finding an unacceptable 8-year delay in prosecution without a satisfactory explanation and minimal evidence of the plaintiff's serious intent to pursue the case.

The court also found a presumption of prejudice to the defendant due to the cumulative 16-year delay from the incident date, leading to inevitably faded memories of parties and potential witnesses, which the plaintiff failed to rebut.

The plaintiff brought a motion for leave to amend his Statement of Claim in a workplace harassment and discrimination action.

The defendants opposed the amendments, arguing they were statute-barred and lacked particularity.

The Master denied the amendment to add a claim for intentional infliction of mental distress, finding it was discovered more than two years prior and was therefore statute-barred.

Other minor amendments were permitted, while decisions on certain paragraphs were deferred to a pending motion to strike.

The defendant Catholic Children's Aid Society brought a motion to strike the plaintiff mother's claim against it for negligent investigation.

The mother alleged the investigation was negligent due to a failure to provide French language translation services.

The court applied the Supreme Court of Canada's decision in Syl Apps, holding that a Children's Aid Society owes its duty to the children and owes no duty of care to the parents during an investigation.

The mother's personal claim against the Society was struck without leave to amend, though the children's claims remain.

The defendant dentist brought a summary judgment motion to dismiss a negligence action arising from allegedly faulty bridgework as statute barred under the Limitations Act, 2002.

The court held that the plaintiff knew or ought to have known the material facts underlying the claim by late May or early June 2011, when replacement treatment was recommended, reimbursement was demanded, and a regulatory complaint was threatened.

The plaintiff's later reliance on the professional regulator's decision did not postpone discoverability because knowledge of legal negligence is not required to start the limitation period.

Summary judgment was granted and the action was dismissed as out of time.