B. McAfee

The defendants brought a motion to vacate a certificate of pending litigation (CPL) registered against their property, arguing the plaintiff failed to prosecute the action with reasonable diligence.

The underlying action involved a claim of fraudulent conveyance to avoid a foreign judgment.

The court dismissed the motion, finding that the plaintiff had satisfactorily explained any litigation delay, had set the action down for trial, and that discharging the CPL would severely prejudice the plaintiff while the defendants showed no evidence of prejudice.

The defendant brought a motion for answers to refusals and for further security for costs.

The refusals issue was resolved on consent.

On the issue of security for costs, it was undisputed that the plaintiff ordinarily resides in Vietnam.

The court found that the merits of the case were neutral due to credibility issues that could not be resolved on a motion.

As the plaintiff did not allege impecuniosity or prejudice, the court ordered the plaintiff to post further security for costs in the amount of $41,835.82.

The plaintiff brought a motion for leave to amend its statement of claim and to compel answers to refusals from the defendant's examination for discovery in an action for repayment of disability benefits.

The defendant opposed the amendments, arguing they were barred by s. 36(3) of the Regulated Health Professions Act, 1991.

The court granted leave to amend, finding the amendments pleaded underlying facts rather than prohibited records.

The court also ordered the defendant to answer the refused questions regarding CPSO proceedings, financial records, and other litigation, with minor limitations.

The plaintiff brought a motion to set aside a registrar's order dismissing its action for delay.

The underlying action sought to enforce a default judgment obtained in Ohio and to declare a property transfer void as a fraudulent conveyance.

Applying the contextual approach, the court found that the plaintiff had satisfactorily explained the litigation delay, demonstrated an intention to prosecute the action, and rebutted the presumption of prejudice to the defendants.

Although the court could not determine exactly when the plaintiff learned of the dismissal order, it concluded that setting aside the dismissal was in the interests of justice.

The motion was granted, and the plaintiff was ordered to pay $10,000 in costs to the defendants in the cause.

The plaintiffs brought a motion for a certificate of pending litigation (CPL) regarding a residential property transferred by the defendant to his spouse.

The plaintiffs sought to recover on unsecured demand loans and alleged the transfer was a fraudulent conveyance.

The court applied the Grefford test and found a high probability of success on the debt claim, sufficient badges of fraud to raise a triable issue regarding intent to defeat creditors, and that the balance of convenience favoured granting the CPL.

The motion was granted and costs were awarded to the plaintiffs.

The defendant to the counterclaim brought a motion for security for costs against the plaintiff by counterclaim following an apartment fire.

The moving party relied on unpaid costs from a previous motion and argued the counterclaim was frivolous and vexatious.

The court found the moving party met its initial burden under Rules 56.01(1)(c) and (e) of the Rules of Civil Procedure.

The responding party failed to demonstrate impecuniosity or that the counterclaim had a good chance of success.

The court ordered the responding party to post $14,000 in security for costs, payable in tranches.

The plaintiffs brought a motion to amend their statement of claim to add two proposed defendants in an action for property damage arising from home renovations.

The proposed defendants opposed the motion, arguing the limitation period had expired.

The court found that the plaintiffs provided a reasonable explanation for not discovering the involvement of the proposed defendants earlier, as they could not have known without being advised by the named defendants.

The court granted leave to add the proposed defendants, allowing them to plead a limitation period defence.

The plaintiff and defendant brought cross-motions to compel answers to undertakings and refusals given during examinations for discovery in a wrongful dismissal action.

The plaintiff alleged she was induced to leave her previous employment of 26 years and that the defendant made material misrepresentations.

The court reviewed the disputed questions, applying the principles of relevance and proportionality.

The court ordered both parties to answer various questions, while finding some of the plaintiff's requests to the defendant overly broad.

Both parties were ordered to re-attend examinations for discovery to answer the compelled questions.

The plaintiffs in a medical malpractice action brought a motion to extend the time for service of the statement of claim on two defendant physicians, and to validate service by email.

The two physicians had left the country and were difficult to locate.

The court granted the extension of time nunc pro tunc, finding no prejudice to the defendants and that the plaintiffs had made reasonable efforts to locate them.

The court validated service by email on one physician, but declined to validate service on the other physician residing in Israel, as the plaintiffs failed to establish that email service was permitted under the Hague Convention.

The defendant brought a motion for leave to examine a non-party, who was an expert engaged by the plaintiffs, for discovery.

The plaintiffs opposed the motion on the basis that Rule 31.10 of the Rules of Civil Procedure expressly prohibits the examination of an expert engaged by a party in preparation for litigation.

The court agreed, finding that the rule does not apply to experts, and dismissed the motion for leave to examine the expert.

The court also validated service of the motion material on the non-party.

The plaintiffs brought a motion for leave to amend their statement of claim to add CML Healthcare Inc. as a defendant on the basis of misnomer in a medical malpractice action involving a delayed diagnosis of a brain tumour.

The plaintiffs originally named Oxford Medical Imaging as the owner of the imaging facility, but later discovered CML owned it at the relevant time.

The court found that the 'litigation finger' was clearly pointing at CML and that there was no non-compensable prejudice.

The motion was granted, and the plaintiffs were awarded costs of $3,000.

The plaintiff brought a motion to compel the defendants, a transit commission and its bus driver, to answer questions refused during examinations for discovery and to re-attend to answer follow-up questions.

The underlying action involved a motor vehicle accident where the plaintiff was a passenger in a vehicle that collided with a transit bus.

The court ordered the defendants to answer questions regarding the driver's 1996 hiring process and driving history, finding them relevant to the pleadings alleging negligent hiring and supervision.

The court also ordered the defendants to re-attend examinations for discovery to answer proper questions arising from the newly provided answers.

The plaintiffs brought a motion for leave to amend their statement of claim in an action concerning an unpaid promissory note related to a share purchase agreement.

The defendant opposed several amendments on grounds of res judicata, expiry of limitation periods, pleading evidence, frivolousness, and inexplicable delay.

The court denied leave for amendments relating to an option agreement, finding them barred by res judicata as the issue had been finally determined in a prior summary judgment.

However, the court granted leave for the remaining amendments, including claims for breach of the duty of honest contractual performance, finding they arose from the same factual matrix and were not statute-barred.

The court also found the delay in seeking amendments was adequately explained and any presumed prejudice was rebutted.

The plaintiff moved for leave to amend its statement of claim to add a third party as a defendant in an action concerning environmental contamination.

The proposed defendant opposed the motion, arguing the claim was statute-barred.

The court found that the plaintiff had actual knowledge of the material facts giving rise to a plausible inference of liability against the proposed defendant more than two years before bringing the motion.

Consequently, the limitation period had expired, and the motion to add the party was dismissed.

The defendants moved for leave to amend their statement of defence and add a counterclaim for patent infringement against the plaintiff and several proposed defendants by counterclaim.

The plaintiff and proposed defendants opposed the amendments, arguing they were statute-barred and legally untenable.

The court granted leave to amend the defence and add the counterclaim against most of the proposed defendants, finding the amendments were not clearly statute-barred and met the low evidentiary threshold.

However, the court dismissed the motion to add one proposed defendant, Crystal, as the proposed pleading failed to allege any infringing activity within Canada.

The respondent brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) over a residential property and to discharge the CPL.

The applicant father claimed he provided funds for the property's purchase and mortgage, alleging an oral trust agreement.

The court found the applicant failed to make full and fair disclosure of material facts on the ex parte motion, including discrepancies in the amounts allegedly provided and his involvement in the mortgage.

Although a triable issue regarding an interest in land was established, the court held that the equities favoured discharging the CPL, as damages would be an adequate remedy and a sale was pending.

The CPL was discharged on the condition that a portion of the sale proceeds be paid into court.

The defendant brought a motion for security for costs against the corporate plaintiff in a commercial lease dispute.

The plaintiff conceded it had insufficient assets, satisfying the defendant's initial onus under Rule 56.01(1)(d).

The court found the plaintiff met the high threshold to demonstrate impecuniosity, as its sole shareholder's only income was ODSP and the business had failed.

The court also found the plaintiff's claim was not plainly devoid of merit, given evidence of alleged breaches of the lease by the defendant.

The motion for security for costs was dismissed, with costs awarded to the plaintiff in the cause.

The plaintiff brought a motion under Rule 45.02 for an order requiring the defendants to pay $368,575.88 into court, representing an alleged overpayment due to an accounting error.

The court found that the plaintiff failed to establish the existence of a specific, differentiated fund, as there was no evidence the overpaid amounts remained in the corporate defendant's bank account or were earmarked.

The motion was dismissed, as the relief sought amounted to execution before judgment.

The defendant insurer brought a motion under Rule 32 for an order permitting its appraiser and experts to inspect the plaintiffs' property, which had suffered fire damage.

The plaintiffs opposed the timing of the inspection, arguing it should occur after the ongoing appraisal process concluded and that the request was delayed.

The court granted the motion, finding no undue delay and noting that the defendant had not inspected the property since the action commenced.

However, the court prohibited one of the defendant's proposed experts from attending due to allegations that they had previously caused additional damage to the property.

No costs were awarded.

The plaintiff brought a motion to validate service of a statement of claim on a corporate defendant and to extend the time for service and permit substituted service on an individual defendant via a non-party insurer.

The action arose from a motor vehicle accident.

The court validated service on the corporate defendant, finding it was properly served at its registered office address.

The court also granted the extension of time and substituted service on the individual defendant, finding no actual prejudice caused by the delay and that the proposed method of service would reasonably bring the claim to his attention.