Joan Haberman

The defendant moved to discharge an ex parte order granting the plaintiff leave to register a certificate of pending litigation (CPL) against its land.

The plaintiff claimed an easement over the defendant's land pursuant to a Storm Water Pond Agreement entered into with a previous owner.

The court found that the plaintiff failed to make full and fair disclosure before the ex parte master, including misrepresenting the nature of the alleged easement and failing to disclose a rejected development application by the Toronto Region Conservation Authority.

The court set aside the ex parte order, concluding the plaintiff had no reasonable claim to an interest in the land, and awarded substantial indemnity costs to the defendant.

The defendant brought a motion for security for costs against the three corporate plaintiffs under Rule 56.01(1)(d) and (e) of the Rules of Civil Procedure.

The court found that the plaintiffs failed to demonstrate they had sufficient exigible assets in Ontario to satisfy a costs award, as their primary assets were patents of uncertain value and marketability.

Furthermore, the plaintiffs failed to establish a good chance of success on the merits, particularly given adverse credibility findings against their principal in a related arbitration.

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

The moving party, Siddiqsons, brought a motion to strike a further affidavit delivered by the responding party, Adler, in the context of a long-delayed Show Cause hearing.

Siddiqsons argued that Adler had no right to submit further materials without leave and that the affidavit was served too late.

The Master dismissed the motion, finding that Siddiqsons had caused the initial procedural irregularities by serving their own materials late and failing to address the issue of prejudice.

Because Siddiqsons' evidence on prejudice was effectively responding evidence, Adler was entitled to deliver reply evidence.

The motion was dismissed and a new deadline for cross-examinations was set.

The plaintiff moved to vary a timetable order and extend the date to set the action down for trial, while the defendant brought a cross-motion to dismiss the action for delay.

The action had previously been dismissed for delay and restored with a strict timetable, which the plaintiff breached.

The court found the plaintiff's delay in producing an expert report on damages was intentional, contumelious, and largely unexplained, exacerbated by the undisclosed destruction of their financial records prior to commencing the action.

The plaintiff's motion was dismissed, and the defendant's motion to dismiss the action for delay was granted.

The plaintiff condominium corporation moved to amend its statement of claim prior to the defendants' scheduled motion for summary judgment.

The defendants opposed the motion, arguing that a prior procedural agreement reached at mediation barred the amendments, that the amendments raised new causes of action past the limitation period, and that they constituted an abuse of process and caused non-compensable prejudice.

The court rejected the defendants' arguments, finding that the mediation agreement did not waive the mandatory application of Rule 26.01, the amendments merely particularized existing claims rather than raising new causes of action, and there was no evidence of bad faith or non-compensable prejudice.

Leave to amend the statement of claim was granted.

The plaintiff slipped and fell on ice on a municipal sidewalk in front of a private home.

She sued the City and the homeowner.

After the presumptive two-year limitation period expired, the homeowner issued a third-party claim against her neighbours and their contractor, alleging water discharged from their property caused the ice.

The plaintiff moved to add the neighbours and contractor as defendants.

The neighbours opposed, arguing the limitation period had expired.

The court granted the motion, finding the plaintiff exercised due diligence and could not reasonably have discovered the neighbours' potential involvement until served with the third-party claim.

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

The action arose from a 2008 bicycle and motor vehicle accident and had been dismissed twice for failing to set the matter down for trial.

The court found that the plaintiff failed to provide a reasonable explanation for the delay, noting that plaintiff's counsel had lost contact with their client.

The court also found that the defendant would suffer significant prejudice due to the passage of time, the loss of access to older medical records, and the inability to conduct a timely independent medical examination regarding a pre-existing knee condition.

The motion was dismissed.

The plaintiff moved to restore the action to the trial list after it was struck for failure to file a certification form.

The action involved a dispute over the proceeds of a real estate joint venture.

Applying the recent Court of Appeal decision in Carioca's Import & Export Inc., the Master determined that because there was no impending administrative dismissal, the appropriate test was whether the action was ready for trial, rather than the stricter delay and prejudice test from Nissar.

Finding the action was nearly ready, the Master granted the motion and imposed a timetable for completing remaining steps.

The defendants brought motions for security for costs against the plaintiffs in a 12-year-old action regarding water damage to commercial premises.

The court previously found the plaintiffs failed to prove impecuniosity.

The plaintiffs failed to adduce evidence demonstrating a good chance of success against any of the defendants on liability or damages, particularly given a $250,000 advance payment already made.

The court ordered the plaintiffs to post security for costs in tranches for each of the moving defendants, totaling $530,000 for the first tranche.

The plaintiff brought an unopposed motion to extend the time to serve the statement of claim on the defendant and for substituted service on the defendant's insurer, or to dispense with service.

The action arose from a motor vehicle accident.

After three attendances and multiple opportunities to provide sufficient evidence, the Master dismissed the motion.

The evidence provided by the plaintiff's law clerk was found to be contradictory, largely hearsay, and failed to adequately explain the delay in service or demonstrate reasonable efforts to locate the defendant.

Furthermore, substituted service on the insurer was inappropriate as the insurer had taken an off-cover position and added itself as a statutory third party.

The plaintiffs, who alleged dental malpractice against the defendant, were required to show cause at a status hearing as to why their actions should not be dismissed for delay.

The delay was primarily caused by a non-party treating dentist failing to produce digital x-rays, and the defendant's failure to bring a motion for production despite having the necessary request letters.

The Master found the plaintiffs provided an acceptable explanation for the delay and that the defendant would suffer no non-compensable prejudice.

The actions were allowed to proceed, a timetable was set, and costs were awarded to the plaintiffs.

The moving party, Echelon, sought production of a transcript of an examination under oath of the defendant vehicle owner, conducted by his insurer, Peel Mutual.

Peel resisted production, claiming litigation privilege.

The Master found that Peel failed to meet the evidentiary onus to establish that the dominant purpose of the examination was reasonably anticipated litigation, as the evidence indicated the primary purpose was adjusting a property damage claim.

The motion for production was granted.

The plaintiff sought leave to issue writs of seizure and sale and notices of garnishment against the defendant, 21 years after obtaining a default judgment.

The court considered whether the plaintiff provided an adequate explanation for the delay under Rules 60.07(2) and 60.08(2) of the Rules of Civil Procedure.

Finding that the plaintiff failed to file writs within the first six years and provided inadequate, hearsay evidence to explain the subsequent 15-year gap, the court inferred a waiver of rights.

The motion for leave was dismissed.

The plaintiff in a class action moved for the production of unredacted documents and documents over which the defendant, GMCL, claimed privilege.

The plaintiff argued that GMCL waived privilege by sharing documents with government actors and financial advisors during its 2009 restructuring efforts, and impliedly waived privilege by pleading reliance on a release.

The Master dismissed the motion regarding privilege, finding that common interest privilege protected the shared documents and that pleading reliance on a release did not constitute an implied waiver.

The issue of redactions for commercial sensitivity was adjourned for further submissions.

The plaintiff moved to set aside a registrar's order dismissing the action for delay.

The court applied the four-part test from Reid v. Dow Corning Corp. and found that the plaintiff failed to provide an acceptable explanation for the litigation delay, failed to establish inadvertence in missing the deadline, failed to bring the motion promptly, and failed to rebut the presumption of prejudice to the defendants.

The motion was dismissed.

The plaintiffs' action was subject to a status hearing under Rule 48.14 after failing to set the matter down for trial.

The individual defendants sought a dismissal for delay.

The court found that the plaintiffs failed to provide an acceptable explanation for the extensive delays in the litigation, noting that the evidentiary record provided by the plaintiffs' counsel's legal assistant was inadequate and failed to explain significant gaps in time.

As the plaintiffs failed to meet the first branch of the conjunctive test to show cause, the action was dismissed.

The plaintiff, who sued his former employer FedEx for constructive dismissal and retaliatory discharge, moved for leave to further amend his statement of claim or, alternatively, to file a Reply.

The proposed amendments sought to add allegations regarding FedEx's motives for allegedly ignoring his complaints about customs irregularities, claiming the company was distracted by more serious illegal activities.

The Master dismissed the motion, finding the proposed amendments were irrelevant to the core issues of the dismissal claim, pleaded evidence rather than material facts, and inappropriately raised new issues that could not be addressed by further defence pleadings.

The plaintiffs brought a motion to compel the defendant, Toronto Hydro, to answer questions refused at discovery and to produce documents regarding its investigations into a transformer explosion.

Toronto Hydro claimed litigation privilege over the investigations, arguing they were conducted in anticipation of litigation.

The Master granted the motion, finding that Toronto Hydro failed to establish that the information came from experts or that the dominant purpose of the investigations was litigation.

Furthermore, Toronto Hydro failed to provide the required undertaking under Rule 31.06(3) not to call the experts at trial, thereby mandating disclosure of their findings and opinions.