Joan M. Haberman

The defendants brought motions for security for costs against the plaintiffs.

The plaintiffs sought leave to file a supplementary affidavit regarding their alleged impecuniosity, which was served six months after the deadline set by a court-ordered timetable.

The court denied leave, finding that plaintiffs' counsel failed to provide a reasonable, good faith explanation for the delay and had ignored the court's explicit direction to research the evidentiary requirements for impecuniosity before drafting the initial materials.

Several defendants in an insurer’s civil fraud action brought motions seeking full particulars of allegations relating to allegedly inflated or fabricated accident benefit invoices submitted through medical service providers.

The insurer alleged improper billing practices involving treatment plans and treatment invoices but refused to provide detailed particulars, asserting privacy concerns under the Personal Health Information Protection Act and offering only a spreadsheet during discovery.

The court held that the pleadings lacked sufficient material facts and that allegations amounting to misrepresentation require full particulars under Rule 25.06(8) of the Rules of Civil Procedure.

The court rejected the argument that the issue became moot after the insurer served an amended pleading removing the words “fraud” and “collusion”, finding the core allegations still required particularization.

The insurer was ordered to deliver the requested particulars within 30 days.

The defendants moved to set aside default judgments arising from a loan transaction secured by promissory note and mortgages.

They alleged the underlying mortgage documents contained forged signatures and argued the judgments were therefore irregularly obtained.

The court held the judgments were regularly obtained because the action was properly served and the debt itself was admitted through subsequent written acknowledgments.

Applying the Rule 19.08 discretionary test, the court found the defendants failed to provide a satisfactory explanation for the default, demonstrated no triable defence, and delayed excessively in advancing the motion.

The equities favoured the lender, who had been unpaid for years and relied on the defendants’ repeated acknowledgments of the debt.

The moving party sought an order validating late service of a statement of claim and extending time for service after the claim was served more than two years after issuance and beyond the six‑month service period under the Rules of Civil Procedure.

The court considered the factors governing extensions of time and validation of service, including length of delay, explanation for delay, and prejudice to the responding party.

The claim had been issued after the expiry of the limitation period and the moving party failed to provide a coherent explanation for the delay or evidence supporting discoverability.

The court found extensive and unexplained delays attributable to counsel, inadequate efforts to locate and serve the defendant, and significant prejudice to the defence including loss of opportunities for surveillance, medical assessments, and vocational evaluation.

The motion to validate service and extend time was dismissed.

In a coverage dispute involving an insured, its insurance broker, and the insurer, the broker sought leave to amend its statement of defence to add a crossclaim against the insurer for a declaration that the insurer was required to defend and indemnify the insured.

The insured opposed the amendment, arguing that no independent cause of action existed between the broker and the insurer and that a prior settlement agreement eliminated any lis between them.

The court held that a crossclaim does not require an independent cause of action and may be advanced where parties share a legal relationship regarding a real issue in the litigation.

Because the question of insurance coverage directly affected the broker’s potential liability and remained unresolved despite the settlement agreement, there remained a sufficient lis between the broker and insurer.

Leave to amend was granted as the proposed pleading was legally tenable and caused no prejudice that could not be compensated by costs.

The plaintiff brought a motion seeking leave to deliver a fresh as amended statement of claim alleging tortious interference with inheritance rights, to add a new defendant, compel a capacity assessment of the defendant mother, examine her lawyer regarding preparation of a will, lift solicitor‑client privilege, and exempt evidence from the deemed undertaking rule.

The proposed amendments were based on allegations that the defendant lacked testamentary capacity when she executed a new will reducing the plaintiff’s inheritance.

The court found the proposed claims lacked material particulars, were unsupported by evidence, and were likely statute‑barred under the applicable limitation period.

The court also held the amendments would unduly expand and delay a focused action involving property accounting disputes.

Leave to amend and related relief were refused, but a limited extension was granted for the action to be set down for trial.

The moving party sought leave to add two entities as respondents to an application challenging the validity of a municipal by-law authorizing financial arrangements related to a film studio project.

The proposed respondents argued that the limitation period for adding parties had expired and that they were neither proper nor necessary parties to the threshold issue concerning the by-law’s validity.

The court held that the proposed entities had no role in the enactment or validity of the by-law and would only potentially be relevant if the application succeeded and issues of repayment or accounting arose.

The court further found that the moving party had actual or constructive knowledge of the entities’ involvement well before the expiry of the limitation period and could not rely on discoverability.

The motion to add the parties was dismissed.

The moving party sought leave to add two entities as respondents to an application challenging the validity of a municipal by-law alleged to constitute illegal bonusing.

The proposed parties argued the claim was out of time and that they were not proper or necessary parties to the threshold issue concerning the validity of the by-law.

The court held that the proposed entities were not necessary to determine the legality of the by-law, which primarily concerned the municipality and an existing municipal corporation.

In any event, the limitation period to add them had expired, and the moving party could not rely on discoverability because public records and earlier correspondence put it on notice of the transfer of interests.

The motion to add the parties was therefore dismissed.

A reference was conducted to determine the amount owing under a mortgage following a prior order requiring the defendant to deliver vacant possession of the mortgaged property.

The self-represented defendant repeatedly attempted to adjourn the hearing and sought to introduce an unsigned accounting sheet purportedly prepared by a chartered accountant without complying with Rule 53.03 regarding expert reports.

The court excluded the document as impermissible expert evidence and rejected arguments that certain payments should reduce interest calculations differently, relying on the mortgage’s standard charge terms allowing the lender to apply payments after default in its discretion.

Based on the lender’s witness testimony and documentary evidence, the court determined the outstanding mortgage debt.

Costs were awarded to the lender on a solicitor-and-client basis pursuant to the mortgage terms.

A status hearing was conducted under Rule 48.14 of the Rules of Civil Procedure to determine whether a civil action alleging solicitor negligence should be dismissed for delay.

The plaintiffs had taken no meaningful steps to advance the action for approximately three years after pleadings closed and repeatedly sought adjournments of the status hearing.

Their explanations for delay—including alleged difficulty retaining counsel, health issues, and motor vehicle accidents—were vague, unsupported by adequate evidence, and failed to address the legal test requiring both an acceptable explanation for delay and absence of non-compensable prejudice to the defendants.

The court found the plaintiffs failed to meet their onus to show cause why the action should proceed.

The action was therefore dismissed for delay.

The plaintiffs moved for security for costs under Rule 56.01(1)(d) on the basis that the defendant corporation was a shell entity with insufficient assets to satisfy a costs award.

The defendant resisted the motion by arguing that its counterclaim substantially overlapped with the main action and that the dispute would likely be stayed in favour of arbitration.

The court held that the counterclaim introduced significant new issues beyond those in the main action, including additional claims for accounting, dividends, and alleged financial misconduct, thereby increasing the plaintiffs’ litigation costs.

Applying the two‑part test for security for costs, the court found good reason to believe the defendant was a shell corporation and that the defendant failed to adduce evidence to rebut the presumption or demonstrate why security should not be ordered.

Security for costs was therefore granted and costs of the motion were awarded to the plaintiffs.

Three sets of third parties brought motions for security for costs against the third-party plaintiff, a non-resident corporation with no assets in Ontario.

The third-party plaintiff opposed the motions, arguing financial hardship and relying on the income stream of its parent company and the personal undertaking of its principal.

The court found the financial disclosure provided by the third-party plaintiff to be deficient and inconsistent, failing to meet the high evidentiary burden required to establish impecuniosity or hardship.

The court granted the motions and ordered the third-party plaintiff to post security for costs in tranches.

The plaintiffs brought a motion seeking a further and better affidavit of documents and an order compelling the defendant solicitor to attend for examinations for discovery.

The dispute arose from an alleged arrangement under which the defendant would refer personal injury clients for medical assessments and pay the plaintiffs’ invoices upon settlement of those claims.

The court found that the defendants’ affidavit of documents was deficient, that privilege had been asserted in a blanket and improper manner, and that relevant documents supporting numerous pleaded defences had not been disclosed.

The court ordered the defendants to serve a supplementary affidavit of documents with proper Schedule “A” production and particularized Schedule “B” privilege claims, and required the defendant to attend for discovery by a fixed deadline.

Costs were awarded to the moving party on a substantial indemnity basis due to the defendants’ delay, conduct during the motion, and failure to cooperate in the discovery process.

The plaintiff brought a motion seeking to vary a prior costs order requiring payment of $5,800, arguing impecuniosity, and also sought to place the action under case management.

The court found the evidentiary record insufficient to establish impecuniosity, noting the absence of current medical evidence, incomplete financial disclosure, and unexplained inconsistencies regarding a previously initiated appeal.

The court further held that the plaintiff’s significant delay in bringing the motion, and failure to raise impecuniosity when the original costs order was made, weighed strongly against granting relief.

The request for case management was also rejected, as the action was a routine personal injury matter and court resource constraints did not justify special management.

The motion was dismissed and the prior costs order remained payable.

Two related actions arising from a motor vehicle accident involved disputes over defence medical examinations.

In the tort action, the defendant’s insurer sought a psychiatric defence medical examination, while in the separate action against the plaintiff’s own insurer the plaintiff sought an order that the same examination would serve both defendants.

The court held that the insurers were adverse in interest because each could attribute the plaintiff’s ongoing psychological condition to the other’s conduct, particularly in light of allegations that the insurer’s handling of accident benefits exacerbated the plaintiff’s injuries.

The court further held that adversity between co‑defendants is not a necessary precondition to separate defence medical examinations; the governing consideration is fairness in the adversarial process.

The third party insurer was permitted to conduct the psychiatric examination and the plaintiff’s motion to bind the other insurer to that examination was dismissed.

The plaintiff moved to set aside a registrar’s administrative dismissal of his action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the contextual approach and the Reid factors, considering the explanation for delay, inadvertence, promptness in bringing the motion, and prejudice to the defendants.

The plaintiff failed to provide sufficient evidence explaining prolonged delay in advancing the action, including outstanding undertakings and discovery obligations, and relied primarily on unsupported assertions of health issues.

Given the age of the action, the expiry of the limitation period, and the presumption of prejudice to the defendants, the court found the evidentiary record inadequate to justify reinstatement.

In a wrongful dismissal action, the plaintiff brought a motion to amend his Reply to remove references to having received and relied upon legal advice regarding the interpretation of a termination clause in his employment contract.

The defendant opposed the amendment, arguing it constituted an attempt to withdraw admissions and sought a declaration that the plaintiff had waived solicitor‑client privilege over the legal advice.

The court held that the pleaded statements about receiving and relying on legal advice were deliberate and unambiguous admissions.

Because the plaintiff failed to satisfy the test for withdrawing admissions under Rule 51.05—providing no evidence of inadvertence, triable issue, or absence of prejudice—the amendment was refused.

The court further found that by placing his state of mind and the legal advice received directly in issue in the pleadings, the plaintiff impliedly waived solicitor‑client privilege regarding that advice.

The plaintiffs moved to set aside a registrar's order dismissing their motor vehicle accident action as abandoned.

The action was commenced on the eve of the limitation period expiring, but the statement of claim was never served on the defendant despite the insurer providing the defendant's address multiple times.

The court applied the contextual approach and the Reid factors, finding that the plaintiffs failed to provide a satisfactory explanation for the delay, missed the deadline through inexcusable inadvertence, and delayed in bringing the motion.

Furthermore, the court found actual and presumed prejudice to the defendant due to the passage of time and loss of evidence.

The motion was dismissed.

The plaintiff brought a motion to compel answers to numerous questions refused during examinations for discovery and to require a defendant to reattend to complete her discovery.

The action concerned alleged fraudulent transfers and corporate arrangements designed to shield assets from execution on a decades‑old judgment.

The court held that the refused questions concerning financial records, intercompany transactions, and asset transfers were relevant to tracing assets and determining whether corporate entities were the alter ego of the original judgment debtor.

The court also rejected renewed attempts to avoid oral discovery on medical grounds, finding the evidence insufficient and noting repeated procedural breaches by the defendants.

The motion was granted with costs and the defendant was ordered to complete discovery within specified timelines.

The plaintiff brought a show cause motion at a status hearing under Rule 48.14 to avoid dismissal of an action for delay.

The claim sought entitlement to critical illness benefits under an insurance policy after a thyroid cancer diagnosis, which the insurer denied based on alleged misrepresentations regarding depression treatment in the application.

The court applied the contextual two‑part test requiring an acceptable explanation for delay and absence of non‑compensable prejudice.

Although the explanation for portions of the delay was weak and attributed largely to solicitor inadvertence, the court held it was acceptable when considered in context, including the defendant’s delayed document disclosure and the document‑driven nature of the dispute.

The court also found no evidence of non‑compensable prejudice to the insurer and rejected speculative claims of future prejudice.

The action was permitted to proceed and the plaintiff was directed to establish a timetable for the litigation.