Julien G. Bonniere

The defendant municipality appealed an interlocutory order of an Associate Justice granting the plaintiff leave under Rule 31.03(2)(b) to conduct a limited, one-hour examination for discovery of a second corporate representative, supplemented by up to two pages of written questions.

The appellant argued the Associate Justice committed palpable and overriding errors by relying on a non-existent agreement between the parties regarding a hybrid examination process and by misapplying the strict test for examining a second corporate representative.

The court found the Associate Justice correctly applied the test from Fischer v. IG Investment Management Ltd., made findings grounded in the record, and fashioned a proportionate remedy addressing discovery incompleteness.

The appeal was dismissed.

The plaintiff brought a motion seeking to strike the defendant's statement of defence for failure to attend examinations for discovery and mediation, and in the alternative, sought an order compelling the defendant to produce Marc Wade as its representative for discovery.

The defendant opposed the motion to strike and the order compelling production of Marc Wade, but did not oppose a status hearing or extension of the set-down deadline.

The court granted the motion to compel production of Marc Wade as the discovery representative, finding him to be the controlling mind of the defendant and therefore an appropriate officer or employee under the Rules of Civil Procedure.

The court dismissed the motion to strike the statement of defence, finding the defendant had reasonably explained its failures and that striking the defence was not a proportionate remedy.

The court granted a status hearing, extended the set-down deadline, and imposed a court-ordered litigation timetable.

The defendant was ordered to pay costs fixed at $14,000 on the partial indemnity scale.

The defendants brought a motion to dismiss or stay an action for want of jurisdiction, or alternatively to decline jurisdiction on the basis of forum non conveniens.

The plaintiff, a U.S. resident, commenced an action in Ontario seeking $2 million in damages for injuries sustained in a trip and fall incident at the Fairmont Banff Springs Hotel in Alberta.

The court found no real and substantial connection between Ontario and the dispute for Parks Bottom and Fairmont Banff Springs, and determined that Accor and OMERS had rebutted the presumption of jurisdiction.

The court also found that Alberta was a far more convenient forum.

The action was stayed against all defendants.

This ruling addresses whether Anne Meehan, a plaintiff, is competent to testify at trial.

The court reviews medical assessments of Ms. Meehan’s capacity, the statutory requirements under the Ontario Evidence Act, and the parties’ arguments regarding the necessity and form of a competency examination.

The court concludes that a voir dire is required to determine Ms. Meehan’s competency, as mandated by section 18(2) of the Evidence Act, and clarifies that such an examination need not occur in a formal courtroom setting.

The court considered motions regarding the production of documents and attendance at discovery in a dispute over unpaid legal fees between a law firm and its former client.

The plaintiff law firm sought to strike the defence or compel the defendant to provide an affidavit of documents and attend discovery.

The defendant cross-moved for a further and better affidavit of documents from the plaintiff, including the law firm's accident benefits file.

The court held that both parties must fulfill their discovery obligations independently, ordered production of the accident benefits file (with privilege claims to be listed in Schedule B), and declined to strike the defence.

No costs were awarded due to divided success.

The court considered an application under the Unconscionable Transactions Relief Act to set aside litigation loan agreements entered into by Chadwick Randy Kelly (by his litigation guardian and attorney for property) with BridgePoint Financial Services Limited Partnership I. The loans, used to purchase and retrofit a home after a catastrophic injury, had grown to over $1.1 million due to compounding interest.

The applicants argued the loans were excessive, harsh, and unconscionable.

The court found that, given the risk profile, the lack of alternative financing, and the terms of the agreements, the loans were not excessive or unconscionable under the Act.

The application was dismissed and costs awarded to the respondent.

The appellants, an investment syndicate holding a first mortgage, appealed an order denying their priority over a second mortgagee (Greenpath) for certain disputed amounts from a power of sale.

The application judge found these amounts were not properly part of the first mortgage and constituted prohibited penalties under s. 8(1) of the Interest Act.

The Court of Appeal dismissed the appeal, affirming that the forbearance agreement was separate from the first mortgage and not enforceable against the second mortgagee, and that the disputed prepayment and default fees were unlawful penalties under the Interest Act due to lack of evidence proving they were legitimate costs.

The defendants brought a motion for security for costs against the plaintiff, who was ordinarily resident outside Ontario (Lithuania) and claimed impecuniosity.

The court applied the two-stage test for security for costs under Rule 56.01(1)(a) and (e).

The plaintiff successfully demonstrated impecuniosity with robust particularity and showed that her personal injury claim, involving an objective shoulder fracture from a slip and fall on ice, was not clearly devoid of merit.

Consequently, the motion for security for costs was dismissed, and the defendants were ordered to pay the plaintiff's costs.