Associate Judge Karen E. Jolley

The plaintiff brought a motion to dismiss the defence and crossclaim of the defendant for failing to comply with two prior court orders and failing to attend an examination for discovery.

The court noted the defendant's obstreperous conduct and failure to provide dates for discovery over a year and a half.

Although the defendant came close to having its defence struck, the court granted one final peremptory opportunity to attend discovery on a specified date.

The plaintiff was awarded costs of the motion fixed at $9,000.

On a motion arising within a wrongful conviction action, the moving parties sought leave to file a responding record after cross-examining the defendant on his summary judgment affidavit.

The court applied the flexible Rule 39.02(2) test and held the proposed evidence was relevant to credibility and to the nature of the defendant's investigative role, responded to issues raised on cross-examination, and was not shown to cause non-compensable prejudice.

The court declined to finally determine admissibility at this stage, holding that issue should generally be left to the summary judgment judge.

Leave was granted with terms requiring advance particulars of the alleged contradictions and permitting a responding affidavit.

The plaintiff sued his former employer for wrongful dismissal, including a claim for a bonus and damages for emotional distress.

On a motion to settle a discovery plan, the plaintiff sought extensive financial records from the defendant to calculate his bonus entitlement.

The court found the request disproportionate at the pre-discovery stage and ordered the defendant to produce only its financial statements.

The court also ordered the plaintiff to produce his medical records, as he conceded they were relevant to his claim for emotional distress.

The applicant condominium corporation abandoned its application against the respondent unit owner after the respondent moved out of the building.

The respondent subsequently brought a motion seeking over $200,000 in costs, including moving expenses, foreign legal fees, and compensation for hundreds of hours spent 'thinking' about the case.

The court found the majority of the claimed costs unreasonable and unrecoverable, fixing the respondent's costs for the abandoned application and the costs motion at $1,411.00.

The plaintiff brought a motion to set aside the registrar's dismissal of his wrongful dismissal action, which was commenced in 2015 and dismissed for delay in 2024.

The court applied the four-part test for setting aside a dismissal order and found that the plaintiff failed to provide a satisfactory explanation for the initial six years of delay.

Furthermore, the plaintiff failed to rebut the presumption of prejudice, as the defendant's key witness had become medically unable to testify.

The motion was dismissed, and the action remained dismissed.

Following the sale of a mortgaged property, surplus proceeds were interpleaded.

Several execution creditors sought distribution of the funds based on writs existing at the time of the sale.

The respondent ex-spouse brought a motion seeking priority for a family law support order obtained five years after the sale, and to set aside one of the execution creditor's default judgments.

The court dismissed the ex-spouse's motions, holding she lacked standing to collaterally attack the default judgment and that under the Creditors' Relief Act, 2010, a support order made after the creation of the fund cannot take priority over executions existing at the date of sale.

The court granted a motion by one bank to renew its writ nunc pro tunc and ordered the funds distributed among the execution creditors.

The plaintiff in a wrongful dismissal action sought leave under Rule 31.10 to examine a non-party, the defendant's former head of Human Resources.

The plaintiff alleged he was dismissed after complaining about harassment by his manager, and sought to question the non-party about similar complaints made by other employees.

The non-party was willing to testify but was bound by a non-disclosure agreement that the defendant refused to waive.

The court granted the motion, finding that the non-party had relevant information that the plaintiff could not obtain from the defendant, and that it would be unfair to require the plaintiff to proceed to trial without this discovery.

The defendants brought a motion to dismiss the plaintiff's wrongful dismissal action for delay under the Langenecker test.

The action had been outstanding for eleven years but was a relatively straightforward wrongful dismissal claim for a one-year employee.

The court found the delay was inordinate but not inexcusable, as the plaintiff had adequately explained the turnover of counsel and procedural complications.

Even assuming the delay was inexcusable, the court found no prejudice to the defendants' ability to have a fair trial, as discovery transcripts preserved evidence and previous findings on the amendment motion had already rejected prejudice claims.

The defendants' motion was dismissed and the plaintiff's cross-motion to restore the action to the trial list was granted with a peremptory timetable imposed.

The moving party plaintiff brought a motion to strike the defences of multiple defendants who had repeatedly failed to comply with court orders requiring payment of costs and delivery of affidavits of documents.

The court applied the test from Falcon Lumber, considering whether the failures were deliberate, clear and unequivocal, whether reasonable explanations were provided, and whether the remedy was proportionate.

The court found the failures of four defendants — including a corporate defendant whose sole director is not a lawyer and who had not retained counsel as ordered — to be deliberate and unexcused, warranting the striking of their defences.

One defendant whose obligations had been fulfilled on the eve of the motion was spared.

The defendants whose defences were struck were ordered to pay costs jointly and severally.

The plaintiff sought leave to amend his statement of claim to add the defendant's professional liability insurer as a defendant.

The plaintiff sought a declaration that his claim and another client's claim against the defendant constituted separate claims under the insurance policy, thereby maximizing available coverage.

The court dismissed the motion, finding that the proposed amendment was impossible of success because the coverage issue could not be determined until the underlying actions were finally decided, as previously held in a related application.

The defendants brought a motion for security for costs against the plaintiff estate.

The estate sued the defendants, alleging that the defendant lawyer erroneously advised the estate's executor that the estate would receive half the proceeds from the sale of a property owned by the deceased's spouse.

In a related family law proceeding, the court had already determined that the deceased and his spouse were not separated, meaning the estate had no entitlement to the proceeds.

The court found that the estate had insufficient assets to pay a costs award and that its claim was devoid of practical merit.

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

The applicant brought a motion to set aside an administrative dismissal of a bill assessment proceeding against the respondent law firm.

The assessment had been adjourned sine die pending the outcome of a separate negligence action against the firm, which was ultimately dismissed.

The firm argued the assessment should not be restored because the negligence trial already determined the firm's conduct.

The court rejected this argument, noting that while the finding of no negligence is res judicata, an assessment officer must consider other factors under the Cohen test to determine the reasonableness of fees.

The court granted the motion to set aside the dismissal but denied costs to the applicant because his non-lawyer daughter submitted fake case law in his factum.

Three defendants each brought motions to compel the plaintiff railway company to answer questions refused on examination for discovery in an action arising from a 2020 train derailment involving a tanker car with a defective wheelset.

The court assessed relevance and proportionality of the requested questions, ordering the plaintiff to answer 4 of 12 questions sought by the railway manufacturer, 1 of 9 sought by the tanker car owner, and 3 of 4 sought by the shipper.

Costs followed the divided success, with the tanker car owner ordered to pay $5,000 to the plaintiff and the plaintiff ordered to pay $7,500 to the shipper.

The plaintiff brought a refusals motion seeking an order that the defendant answer undertakings and refusals from the continued examination for discovery of its representative, and that the representative re-attend for a continued examination.

The motion addressed ten groupings of refusals relating to succession planning, supervisor qualifications and conduct, harassment policy, employment records, conflict of interest, and HR practices in a wrongful dismissal action alleging inducement and misrepresentation.

The court granted some questions and denied others across the groupings, finding divided success.

The defendant was ordered to answer within 45 days and the plaintiff was permitted one further one-hour examination by Zoom.

Each party was ordered to bear its own costs.

The applicant law firm brought a motion seeking a declaration that the respondent abandoned her motion to challenge the retainer agreement in an assessment proceeding concerning unpaid legal fees.

The respondent served a notice of motion in May 2023 but failed to file it with the court or book a hearing date for over two years, despite repeated follow-up communications from the applicant.

The court found that while the respondent's conduct was deleterious, she did not demonstrate an intention to abandon the motion.

The court granted the respondent a final opportunity to file and serve her motion record with a return date by November 21, 2025, with the warning that failure to do so would result in the motion being deemed abandoned.

The court awarded costs of $12,000 to the applicant.

The plaintiff brought a motion seeking an order to validate and extend the time to serve the statement of claim on the defendants, to substitute the named defendant from "Boyce Stewart" to "Stewart Boyce" due to misnomer, and to extend the set down date from June 19, 2025 to June 19, 2027.

The defendants opposed the motion.

The court found that the plaintiff provided a reasonable explanation for the delay caused by departure of counsel and subsequent misunderstanding about file carriage.

The court further found that the defendants suffered no prejudice or unfairness, as the parties had exchanged information through their insurers within days of the accident and continued to do so for approximately two years before the claim was issued.

The court granted the motion, validating service and extending the set down date, while ordering each party to bear its own costs.

A landlord sought damages against a tenant and personal guarantors for breach of a commercial lease at 530 Yonge Street, Toronto.

The tenant defaulted on rent payments beginning in February 2020, and the lease was terminated in September 2023.

The court determined damages for unpaid rent to the end of the lease term, accounting for mitigation efforts through re-leasing portions of the space.

The court awarded total damages of $2,097,249.16 including mitigation costs and HST, plus interest at 12.20% per annum and legal costs of $24,921.86.

The defendants brought a motion to dismiss the plaintiff's action due to his failure to comply with multiple costs orders totaling $61,586.96.

The plaintiff argued he was entitled to a hearing before a panel of the Divisional Court to clarify their order before paying costs.

The court rejected this argument, finding no process exists for an explanatory attendance after an order is settled, the Divisional Court had already refused further attendance, the order was clear on its face, and the plaintiff's failure to pay costs remained unexplained.

The motion was granted with costs awarded to the defendants.

The applicant, husband of the deceased, sought an order compelling the respondents to answer refusals and provide better answers to undertakings given during cross-examinations in an estate application challenging a will and various transfers.

The applicant narrowed his motion to focus on communications-related refusals.

The court dismissed the motion, finding that the broad, unlimited requests for all communications were not relevant and overly broad.

Where more limited requests had been made, the respondents had already provided substantive answers or produced documents where found.

The court awarded partial indemnity costs to the successful respondents.

The plaintiff brought a motion to amend the name of defendant YM Inc. (Sales) o/a Sirens to La Maison Simons Inc. based on misnomer.

The motion was dismissed because the plaintiff had previously discontinued her action against Sirens on October 15, 2024, making the remedy of misnomer unavailable.

The court also found that the plaintiff did not seek to add Simons as a distinct party in the notice of motion.

Additionally, the court determined that even if adding Simons as a separate party were considered, the plaintiff failed to meet the burden of proving that the limitation period should run from any date other than the date of injury (November 3, 2019), which would be outside the applicable limitation period.

Costs were awarded to the proposed defendant.