Jolley

The court heard three procedural motions in a $100 million commercial dispute involving allegations of breach of contract and breach of confidence.

The defendants moved to compel the plaintiffs to answer undertakings and refusals from discovery, which the court largely granted, ordering the plaintiffs to provide development timelines and material facts supporting their group enterprise claims.

The plaintiffs brought two motions: one to strike the defendants' response to a request to admit an incomplete affidavit, and another to compel updated answers regarding expert witnesses.

The court dismissed both of the plaintiffs' motions, noting the defendants' ongoing obligation to correct discovery answers under the Rules of Civil Procedure.

The defendant insurers brought a motion for security for costs against the corporate and individual plaintiffs following a dispute over insurance coverage for a flooded restaurant.

The court dismissed the motion against the individual plaintiff, finding no evidence of his assets and that his claim was not vexatious.

The court also declined to order security for costs against the corporate plaintiff, despite its lack of assets, because the plaintiff alleged its impecuniosity was caused by the defendants' failure to timely pay business interruption insurance proceeds.

The plaintiff brought a motion to substitute a known roofing contractor for a 'John Doe Contractor' defendant on the basis of misnomer, to have three related fire damage actions tried together, and to assign the matter to case management.

The court dismissed the misnomer motion, finding the proposed defendant could not have reasonably known the 'litigating finger' was pointed at him since he was known to the plaintiff and the pleading described an unknown entity.

The court granted the request to try the actions together due to overlapping facts and witnesses, but declined to order case management.

The plaintiff brought a motion to validate service of a statement of claim on the defendant Cronnox as of April 30, 2014.

Cronnox consented, but two non-parties—Cronnox's insurer (who denied coverage) and Cronnox's former lawyer—opposed the motion, arguing service occurred later, which would affect limitation periods for third-party claims and a related coverage dispute.

The court held the non-parties lacked standing as their economic interests were not directly affected by the order.

Regardless, the court found service was properly effected on April 30, 2014, and validated it accordingly.

The plaintiff brought a motion to set aside a Registrar's order dismissing his defamation action for delay.

The action was administratively dismissed after the plaintiff failed to set it down for trial by January 1, 2017, although he successfully filed his trial record on January 27, 2017.

The court found that the Registrar should not have dismissed the action after accepting the trial record.

Applying the four-part test for setting aside a dismissal order, the court found the plaintiff provided an adequate explanation for the delay, his failure to meet the deadline was inadvertent, the motion was brought promptly, and the defendants suffered no actual prejudice.

The motion was granted, but the plaintiff was ordered to pay costs to the defendants for seeking the indulgence.

The plaintiffs brought a motion for leave to amend their statement of claim to allege a breach of minutes of settlement by the defendants.

The defendants opposed the motion, arguing the proposed amendments were barred by the Limitations Act, 2002, as the plaintiffs ought to have discovered the alleged defects in the replacement materials upon delivery.

The court granted leave to amend, finding it was not clear that the claim was statute-barred, as the plaintiffs may have reasonably relied on the defendants' good faith in fulfilling the settlement.

The court also granted the plaintiffs' request to transfer the action to the ordinary procedure due to an increase in claimed damages.

The defendants brought a motion for relief from the deemed undertaking under Rule 30.1.01(8) to use portions of the plaintiff's examination for discovery transcript from the civil action in a related statutory accident benefits (SABS) claim before the Licence Appeal Tribunal.

The plaintiff argued the court lacked jurisdiction and that the LAT should decide the issue.

The court held it had jurisdiction to waive the deemed undertaking, leaving admissibility to the LAT.

The court granted the motion, finding the interest of justice outweighed any prejudice because the plaintiff had consented to the defendants' counsel acting in both proceedings and knew Canada Post was the sole decision-maker for both claims.

The defendants brought a motion for the production of a report prepared by the plaintiff's Barbadian counsel (the CGF Report) and a list of documents reviewed by that counsel.

The plaintiff claimed solicitor-client and litigation privilege over the report and the list of documents.

The court held that the CGF Report was protected by solicitor-client privilege as it contained legal advice, and the plaintiff had not waived this privilege.

However, the court found that the list of documents reviewed by counsel was not privileged, as it merely constituted facts, and ordered its production.

A cross-motion by the plaintiff to strike portions of an affidavit was resolved by the court placing no weight on the hearsay paragraphs.

The defendant brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) on a residential rental property.

The plaintiff had claimed a 50% shareholder interest in the corporate owner of the property but provided no documentary evidence.

The court found no triable issue regarding the plaintiff's interest in the property.

Furthermore, the court discharged the CPL on the grounds of material non-disclosure and misleading evidence presented by the plaintiff during the ex parte motion, specifically regarding an undisclosed caution and false claims of mortgage default.

The defendant brought a motion to compel the plaintiff to answer questions refused on cross-examination.

The plaintiff had sworn an affidavit in support of a pending motion to remove the defendant's counsel for a conflict of interest, alleging he previously shared confidential information with lawyers at that firm.

The plaintiff refused to disclose the contents of those conversations, claiming solicitor-client privilege.

The court granted the motion to compel, finding that the defendant needed the details of the communications to test whether a solicitor-client relationship existed, whether the information was confidential, and whether there was a risk of prejudice.

The plaintiff brought a motion to amend her statement of claim to add a $150,000 claim for punitive damages, alleging the defendants falsified a lease agreement.

She also sought to compel answers to undertakings and refusals from discoveries.

The court dismissed the motion to amend, finding the proposed claim was statute-barred under the Limitations Act, 2002, as the plaintiff knew of the alleged alterations more than two years prior.

Furthermore, the amendment failed to plead an independent actionable wrong with sufficient particularity.

On the discovery issues, the court ordered the defendants to answer two outstanding undertakings and one refusal, but found the remaining questions were either already answered or properly refused for irrelevance.

The plaintiff brought a motion to add Wankiewicz as a defendant in an action for injuries caused by an off-leash dog.

Wankiewicz argued the claim was statute-barred by the two-year limitation period.

The court found the plaintiff acted with reasonable diligence, as the original defendant had admitted ownership of the dog in his statement of defence before withdrawing the admission over a year later.

The motion to add the defendant was granted, as the claim against her was not discoverable until the admission was withdrawn.

The plaintiffs in a construction deficiency action brought a motion to compel the defendant Monterey Park to provide a further and better affidavit of documents, specifically seeking income tax returns, financial statements, general ledgers, and working papers for a three-year period.

The plaintiffs alleged Monterey Park was the alter ego of the defendant Ridgevale.

The court dismissed the motion, finding that the requested documents were not relevant to the pleaded allegations, as existing productions already demonstrated the financial relationship between the corporate parties.

The court also held that the broad request for three years of financial records offended the principle of proportionality.

The defendant brought a motion for security for costs against the plaintiff, a Delaware limited liability company.

The plaintiff opposed the motion, claiming impecuniosity.

The court found that the defendant met the initial onus under Rule 56.01(1) as the plaintiff resided outside Ontario and lacked sufficient assets in the province.

The court held that the plaintiff failed to meet the high evidentiary threshold to establish impecuniosity, as it did not provide full financial disclosure regarding its principals' assets and ability to raise funds.

The motion was granted, and the plaintiff was ordered to post security for costs in tranches.

The plaintiff brought a motion for a further and better affidavit of documents from her former employer and related defendants in a wrongful dismissal and discrimination action.

The plaintiff sought seven categories of documents, arguing they were necessary to respond to a pending summary judgment motion.

The court dismissed the majority of the requests, finding that the defendants had either already produced the relevant documents, the documents did not exist, or the requested documents (such as other employees' severance packages) were privileged and irrelevant.

The court granted the request for documents relating to the rationale for not awarding the plaintiff a salary increase in early 2014.