Jolley

The plaintiffs brought a motion for an order to permit them to obtain soil and groundwater samples from a neighbouring property owned by a non-party, after the action had been set down for trial.

The plaintiffs sought the samples to allow their expert to perform forensic environmental testing to respond to the defendants' expert reports regarding PCB contamination.

The court granted leave to bring the motion, finding the expert's need for additional sampling constituted an unexpected change in circumstances.

The court also granted the inspection order, concluding that the testing would be useful and probative in determining whether the contaminants on the plaintiffs' property originated from the neighbouring property.

The defendant employer brought a motion to strike paragraphs from the plaintiff's wrongful dismissal statement of claim that referred to a settlement offer and subsequent communications.

The plaintiff argued the communications were not privileged or, alternatively, fell under the exception for pleading bad faith.

The court found the communications were protected by settlement privilege and that the plaintiff's bad faith claim lacked an air of reality, as the dispute centered on a genuine disagreement over contract interpretation.

The motion to strike was largely granted.

The plaintiffs brought a motion to strike the defendants' statement of defence due to their consistent failure to abide by multiple court orders over three years.

The action was commenced to enforce unpaid costs orders from a failed arbitration and judicial review.

Despite being under case management and subject to multiple peremptory orders, the defendants failed to complete examinations for discovery, answer undertakings, or attend mediation.

The court found the defendants' breaches demonstrated an utter disregard for the court's orders and concluded that no other appropriate and practical remedy short of dismissal would ensure compliance.

The motion to strike the statement of defence was granted.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action.

The plaintiff, a self-represented litigant, failed to attend the virtual hearing despite receiving notice.

The court found that the plaintiff's claims regarding condominium liens and related disputes were either barred by a full and final release signed in a 2009 action, statute-barred under the Limitations Act, 2002, or raised no genuine issue requiring a trial.

The motion was granted, the action was dismissed, and partial indemnity costs were awarded to the defendants.

The moving party defendants brought a motion for particulars of an oral supply agreement alleged by the plaintiff in its Fresh as Amended Statement of Claim.

The plaintiff argued that further particulars were not required and that the issue was res judicata based on a prior Rule 21 motion decision.

The court found that the prior Rule 21 decision did not preclude a motion for particulars.

The court held that the plaintiff's written responses combined with oral clarifications provided during the hearing sufficiently answered the defendants' demands.

The plaintiff was ordered to provide the oral particulars in writing within 20 days.

The defendants brought a motion to compel answers to five questions refused by the plaintiff during an examination for discovery in a wrongful dismissal and breach of contract action.

The refused questions related to the income tax returns of the plaintiff's wife, the financial statements of a family trust, and details regarding the plaintiff's pension from a previous employer.

The court upheld all five refusals, finding the requested information either irrelevant to the pleadings or too far removed to warrant disclosure.

The defendants were ordered to pay costs of $6,000 on a partial indemnity basis.

The defendants brought a motion for leave to add a counterclaim seeking a declaration dismissing the plaintiffs' claims in a 2013 intellectual property action.

The defendants argued the counterclaim was necessary to mitigate the costs of preparing for trial on all issues.

The court dismissed the motion, finding the proposed counterclaim was duplicative of the statement of defence, dependent on the main action, and brought with unexplained delay eight years into the litigation.

The defendants in a solicitor's negligence action brought a motion to remove the plaintiff's lawyers of record, arguing they had a conflict of interest and would likely be called as witnesses at trial.

The plaintiff's lawyers had represented the plaintiff in the underlying bankruptcy matters both before and after the defendants' retainer.

The court found that the lawyers' evidence regarding the advice they gave the plaintiff and the steps they took or failed to take was significant to the defendants' defence and mitigation arguments.

Applying the relevant principles, the court concluded that a fair-minded, reasonably informed member of the public would find the proper administration of justice required the lawyers' removal.

The motion to remove counsel was granted, while motions for production and leave to examine non-party witnesses were adjourned.

The plaintiffs brought a motion to compel the defendants to answer fifteen refusals from examinations for discovery and written interrogatories.

The underlying action involves an environmental investigation.

The court reviewed each refusal, upholding several on the basis of solicitor-client privilege, proportionality, and sufficient prior answers, while ordering the defendants to answer others, including clarifying transcript discrepancies and conducting specific email searches.

The motion was granted in part.

The defendants brought a motion to compel the plaintiff to attend in-person physiatry and neuropsychology defence medical examinations.

The plaintiff objected to the in-person physiatry examination due to COVID-19 concerns and her compromised health, and objected to the neuropsychology examination arguing she had not put her cognitive state in issue.

The court ordered the plaintiff to attend both examinations in person, finding that adequate COVID-19 safety protocols were in place at the assessment facility and that the plaintiff's pleadings and medical reports had put her neurocognitive condition in issue.

The defendants brought a motion to compel the plaintiffs to answer questions refused on discovery and for a declaration that the plaintiffs waived solicitor-client privilege over legal advice received from their former counsel.

The defendants argued privilege was waived through the plaintiffs' pleadings of duress, their discovery evidence, and by publicly filing documents in a separate small claims court action against the counsel.

The court held that the plaintiffs did not waive privilege in this action because they did not put the legal advice in issue or rely on it for their claims.

While privilege was waived over the publicly filed documents, those documents were deemed irrelevant to the current action.

The court also ruled on several other discovery refusals, upholding some and ordering answers or redactions for others.

The plaintiff brought a motion under Rule 25.11 to strike portions of the defendant's statement of defence in a wrongful dismissal action.

The plaintiff sought to strike allegations of performance issues, arguing they were irrelevant as the termination was without cause, and allegations of a settlement offer.

The court agreed, finding the performance issues were not tied to the bonus claim as argued by the defendant, and that pleading a settlement offer or a 'reasonable termination arrangement' was irrelevant and improper.

The motion was granted and the offending paragraphs were struck.

In the context of a pending summary judgment motion regarding an alleged negligent misrepresentation of intent to acquire property for a GO Train station, both parties brought motions to compel answers to questions refused during cross-examinations on affidavits.

The Master applied the principles from Ontario v. Rothmans Inc. to determine the proper scope of cross-examination.

Notably, the Master found that the defendant waived solicitor-client privilege by relying on its counsel's advice to support its defence of good faith and to allege ulterior motives by the plaintiffs.

Both parties were ordered to answer specific questions and re-attend for further cross-examination.

The defendant brought a motion to discharge a certificate of pending litigation (CPL) granted ex parte to the plaintiffs over a condominium redevelopment property.

The defendant argued the plaintiffs failed to make full and fair disclosure by omitting a standard form agreement of purchase and sale and relevant emails.

The court found the plaintiffs complied with their disclosure obligations, as the inclusion of the standard agreement was a triable issue rather than a deliberate omission.

The court also found the property was unique to the plaintiffs under the Dhunna factors.

The motion to discharge the CPL was dismissed.

The plaintiff brought a motion to amend his statement of claim to reduce damages to $35,000, dismiss a third-party claim, and transfer the action to the Small Claims Court.

The defendants opposed the transfer, arguing prejudice due to COVID-19 delays and costs already incurred in defending the Superior Court action.

The court granted the unopposed amendments and dismissal of the third-party claim.

The court also granted the transfer to Small Claims Court, finding no definitive prejudice from delay, but ordered the plaintiff to pay $500 to each defendant for costs thrown away on steps unnecessary in Small Claims Court.

The defendant purchaser brought a motion to stay the plaintiff vendor's civil action in favour of arbitration, relying on the arbitration clause in the Tarion Addendum to their agreement of purchase and sale for a new home.

The plaintiff conceded the existence and scope of the arbitration agreement but argued the court should refuse the stay due to undue delay, waiver, and because the matter was proper for summary judgment.

The court found no waiver or undue delay, noting the action had not progressed significantly past pleadings.

The court also held the case was not proper for summary judgment as it involved disputed facts and issues of anticipatory breach.

The motion to stay the action was granted.

The defendant brought a motion to compel answers to undertakings and refusals regarding the plaintiff's expert report and social media accounts following a motor vehicle accident.

The court dismissed the request for the expert's foundational material and drafts, finding that the disclosure obligation under Rule 53.03(2.1) is not triggered until the plaintiff elects to call the expert at trial.

The court also dismissed the request for social media production, holding that the defendant failed to provide an evidentiary basis establishing that the private accounts contained relevant information.

The plaintiff was awarded costs of the motion.

The plaintiff brought a motion to set aside a registrar's dismissal order and extend the time to set the action down for trial.

The court applied the Reid factors, finding the plaintiff provided a reasonable explanation for the delay, missed the deadline through inadvertence, and rebutted the presumption of prejudice.

The defendants failed to demonstrate actual prejudice, as the unavailability of certain witnesses was not caused by the delay.

The motion was granted and the dismissal order was set aside.

The moving party brought a motion to discharge a certificate of pending litigation (CPL) that was granted to the responding party ex parte.

The court found that the responding party failed to make full and fair disclosure of material facts on the ex parte motion, including provisions in the agreement of purchase and sale prohibiting the registration of a CPL and disavowing any legal or equitable interest in the property.

The court also found that the property was not unique to the responding party, as it was purchased as an investment.

The motion was granted, the CPL was discharged, and costs were awarded to the moving party.

The plaintiff was successful on a status hearing motion to prevent the dismissal of its action for delay.

The parties could not agree on costs.

The plaintiff sought $35,000, while the unsuccessful defendants sought $30,225.24, arguing the motion was only necessary due to the plaintiff's inaction.

The court awarded costs of $20,000 to the defendants on a partial indemnity basis, finding it was reasonable for them to compel the plaintiff to show cause and noting the plaintiff's primary explanation for the delay was inaccurate.