Jolley

The plaintiff in a wrongful dismissal action sought leave under Rule 31.10 to examine a non-party, the defendant's former head of Human Resources.

The plaintiff alleged he was dismissed after complaining about harassment by his manager, and sought to question the non-party about similar complaints made by other employees.

The non-party was willing to testify but was bound by a non-disclosure agreement that the defendant refused to waive.

The court granted the motion, finding that the non-party had relevant information that the plaintiff could not obtain from the defendant, and that it would be unfair to require the plaintiff to proceed to trial without this discovery.

The defendant employer brought a motion to sever the claims of four former senior employees who sued for constructive dismissal.

The plaintiffs alleged that the defendant made similar changes to their employment terms, including eliminating bonuses and altering reporting structures.

The court dismissed the motion, finding a sufficient nexus between the claims under Rule 5.02(1) of the Rules of Civil Procedure and concluding that severing the claims would cause undue complication, delay, and risk of inconsistent results.

The plaintiff in a wrongful dismissal action brought a motion seeking the production of unredacted copies of employee complaints, a whistleblower complaint, and an investigation report relied upon by the defendant to justify termination for cause.

The defendant argued the redacted identities were protected by qualified privilege and that disclosure would cause harm and breach confidentiality.

The court applied the Wigmore criteria and concluded that the public interest in the proper administration of justice and fairness to the plaintiff outweighed the interest in protecting the complainants' identities.

The motion was granted, and the defendant was ordered to produce the unredacted documents.

The plaintiff was injured at Centreville and sued the City of Toronto and Beasley Enterprises.

The City requested Beasley to assume its defence pursuant to a licence agreement, but Beasley refused and crossclaimed against the City.

The action was eventually settled by Beasley and discontinued against the City.

The City brought a motion for its costs.

The court found the plaintiffs acted reasonably in keeping the City in the action, but ordered Beasley to pay the City's partial indemnity costs of $20,689.85 due to the indemnity provisions in the licence agreement and Beasley's refusal to let the City out of the action.

The plaintiffs brought a motion for leave to amend their statement of claim and to add defendants.

The parties agreed to argue two preliminary issues: whether to validate service of the original statement of claim, and whether the limitation period for certain claims was governed by the Real Property Limitations Act (RPLA) or the Limitations Act, 2002.

The court validated service on all defendants except Sundeep Gupta, who had never been served.

The court found that the claims against the Schedule C and D companies sought constructive trusts and tracing of profits into land, and were thus governed by the 10-year limitation period under the RPLA.

The claims against the Schedule E company sought damages simpliciter and were governed by the Limitations Act, 2002.

The plaintiff sought leave to amend her statement of claim to add a claim for punitive and aggravated damages against the defendants for intentional infliction of mental distress.

The proposed claim was based on the surveillance tactics of investigators retained by defence counsel and counsel's failure to respond to inquiries.

The court dismissed the motion, finding that the proposed amendments were not tenable at law because a party cannot be vicariously liable in punitive damages for the actions of their lawyer, and opposing counsel owes no duty of care to the plaintiff.

The court also found that granting the amendment would cause non-compensable prejudice by likely requiring all counsel to be removed from the record to testify.

The defendant brought a motion to strike a paragraph in the plaintiff's reply that referenced a Transportation Safety Board (TSB) investigation into a train derailment.

In response, the plaintiff brought a cross-motion to amend the paragraph.

The court granted the motion to strike and dismissed the motion to amend, finding that the proposed amendment did not meet the requirements for a reply, pleaded evidence rather than material facts, and was scandalous and prejudicial as it improperly implied wrongdoing based on the mere existence of a TSB investigation.

The defendant brought a motion to set aside a noting in default after failing to file a statement of defence in time.

The plaintiff opposed the motion, arguing the defendant had not explained the delay or shown extraordinary circumstances.

The court applied the factors from Franchetti v. Huggins and found that the delay was short, the defendant had been seeking counsel, and the preference is for cases to be decided on their merits.

The motion to set aside the noting in default was granted.

The moving defendants brought a motion seeking to dismiss the action for delay, an order for a further and better affidavit of documents, and answers to refusals.

The court dismissed the motion to dismiss, noting the action had already been set down for trial.

The court largely dismissed the requests for further productions and refusals, finding the plaintiff had made reasonable efforts to obtain third-party records and that the defendants should seek non-party production under Rule 30.10 if they desired further documents.

The moving defendants were ordered to pay $1,500 in costs.

The defendant brought a motion for an order requiring the plaintiff to produce documents relating to its claims for breach of contract and defamation.

The plaintiff had sued the defendant for $2.3 million after the defendant initiated an $11,000 small claims action for unpaid invoices.

The court found the plaintiff's initial affidavit of documents deficient and ordered the delivery of a supplementary sworn affidavit of documents.

The defendant's request to set a discovery plan deadline was dismissed as premature.

Following the settlement of a motor vehicle accident tort claim, the plaintiffs brought a motion for costs and an increase in the pre-judgment interest rate.

The court assessed the costs of the civil action, reducing the amount claimed to account for expenses incurred due to a trial adjournment requested by the plaintiffs.

The court also considered whether the tort defendant should contribute to the costs the plaintiffs incurred in parallel statutory accident benefits (SABs) proceedings, ultimately ordering a $20,000 contribution because the SABs settlements significantly reduced the defendant's tort exposure.

The plaintiffs' request to increase the pre-judgment interest rate to offset statutory deductible increases was dismissed.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) on a property purchased by one of the corporate defendants.

The plaintiff alleged that funds owed to it for unpaid meat supplies were diverted by the debtor corporation's directors to fund the property purchase, claiming a constructive trust and tracing remedy.

The court dismissed the motion, finding the plaintiff was essentially an unsecured creditor seeking to secure a debt rather than asserting a genuine interest in land, and that other remedies were available.

In a medical malpractice action, the plaintiffs brought a motion seeking production of the instructing letter and communications between defence counsel and their expert witness.

The plaintiffs argued that a factual assumption the expert was asked to make regarding the onset time of the deceased's chest pain contradicted the defendant doctor's discovery evidence, suggesting improper coaching.

The court dismissed the motion, finding no evidence to support a reasonable suspicion that counsel improperly influenced the expert, and held that litigation privilege continued to protect the communications.

The defendant architect brought a motion for particulars of the plaintiffs' fresh as amended statement of claim regarding alleged design errors and cost overruns on a hotel redevelopment project.

The defendant also sought to strike a paragraph pleading the purchase of professional liability insurance.

The court dismissed the motion for particulars, finding the plaintiffs had provided sufficient detail in their response to enable the defendant to plead, and that further detail was a matter for discovery.

The court granted the motion to strike the insurance paragraph, finding it scandalous and irrelevant to the dispute.

The plaintiff brought a motion to strike the defendant's statement of defence due to his failure to comply with two prior court orders requiring him to answer undertakings and refusals, and to pay costs.

The self-represented defendant argued the ordered undertakings were overly broad and intrusive, but provided no evidence of inability to pay costs and did not indicate a willingness to comply.

The court found the defendant unwilling to comply with court orders and struck the statement of defence, awarding costs to the plaintiff.

The defendants brought a motion to strike paragraphs 19-24 of the plaintiff's reply and defence to counterclaim, arguing they were scandalous, frivolous, and vexatious.

The impugned paragraphs contained allegations of drug addiction, spousal violence, and anger issues against the personal defendants.

The court found these allegations to be irrelevant personal attacks that did not clarify the issues in dispute regarding alleged financial irregularities.

The motion was granted and the paragraphs were struck.

The applicants brought a motion for leave to deliver a further affidavit in their application seeking reinstatement of their membership in the respondent centre.

The applicants had already cross-examined the respondent's deponent but sought to introduce evidence addressing a new ground for termination allegedly raised during the cross-examination.

The court granted leave, finding the evidence potentially relevant to the applicants' claim that false information was provided to the membership, that there was no non-compensable prejudice to the respondent, and that there was a reasonable explanation for the evidence not being included initially.

The plaintiff, in a wrongful dismissal and age discrimination action, brought a motion to compel answers to discovery refusals and undertakings.

The court ordered the defendant to answer questions regarding the age and termination status of other senior management team members, finding them relevant to the defendant's pleadings.

However, the court dismissed requests for the recruitment file of a replacement executive director and notes from an in camera board meeting, finding the former irrelevant and the latter protected by solicitor-client privilege.

The defendant brought a motion to remove the plaintiff's law firm as lawyers of record, arguing he was a former and current near-client of the firm and had provided confidential information.

The court found the defendant was a current near-client due to his close association with the firm's existing corporate clients.

The court also found the firm failed to rebut the presumption that it received relevant confidential information and failed to implement a timely ethical screen.

The motion was granted and the law firm was disqualified.

The plaintiff brought a motion to strike the defendant's statement of defence after the defendant repeatedly delayed and ultimately failed to attend scheduled examinations for discovery.

Despite a prior court order mandating the completion of discoveries by a set date and warning of consequences for further non-attendance, the defendant refused to proceed unless it could examine the plaintiff first, contrary to the plaintiff's notice of examination.

The court found the defendant's conduct to be a deliberate attempt to delay the proceedings and struck the statement of defence pursuant to Rules 34.15(1)(b) and 60.12.