Larissa Moscu

The plaintiffs requested an amendment to the court's previous reasons dismissing their request for injunctive relief, citing an error in a transcript regarding whether the Law Society of Upper Canada was investigating the plaintiffs.

The defendant conceded the transcript error but argued the dismissal should be maintained.

The court corrected the factual error in its supplementary reasons but declined to amend its previous order, finding that the plaintiffs' case for injunctive relief was still not ironclad enough to warrant the exceptional remedy sought.

The plaintiff brought a motion for leave under Rule 48.04(1) to bring a subsequent motion to strike a pleading in the defendants' Fresh as Amended Statement of Defence.

The plaintiff argued leave was not required because the action had been struck from the trial list.

The court held that leave was still required and denied the motion, finding no significant or unexpected change in circumstances to justify the delay of over three and a half years since the impugned pleading was delivered.

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.

A case conference was held regarding an application by a purchaser for the return of a $430,000 deposit from a failed real estate auction, and a related action by the auctioneer for its commission.

The court ordered a consent interpleader allowing the auctioneer's counsel to pay the deposit into court.

The court also set a timetable for a cross-application by the auctioneer and stayed the related action pending the outcome of the applications.

The moving party, Zayo Inc., previously had its motion dismissed.

The motion sought an order for the Monitor to pay Zayo $1,228,799.81 from the proceeds of the sale of the applicants' assets.

In this costs endorsement, Zayo argued that costs are not the norm in CCAA proceedings.

The court disagreed, finding this to be an exceptional case where the normal rule of costs should apply, as the real opponents (the secured lenders and the purchaser) were not insolvent.

The court awarded costs against Zayo, fixing them at $30,000 each for Primus and BMO, and $20,000 each for Birch and the Monitor.

The defendant sought leave to appeal an order dismissing a motion to strike or stay an amended statement of claim.

The underlying action alleged that government representations induced the plaintiffs to invest in a telecommunications company and that subsequent government conduct destroyed the value of the investment, causing significant losses.

The moving party argued the claim was derivative in nature and that several pleaded causes of action disclosed no reasonable cause of action.

The court held that the stringent test for leave to appeal under Rule 62.02(4)(b) was not met because there was no reason to doubt the correctness of the motion judge’s decision.

Although the pleadings raised novel and important legal issues, they were not plainly and obviously doomed to fail and should proceed on a full evidentiary record.

In a medical malpractice action brought by a self-represented and incarcerated plaintiff, the court addressed several procedural motions in case management.

The plaintiff sought leave to amend the statement of claim, compel answers to discovery questions, obtain production of hospital employment documents, strike portions of an affidavit, and require production of audio recordings from discovery.

The court granted the motion to amend and the motion to strike specified affidavit paragraphs on consent.

Motions seeking further answers to questions, additional productions from the hospital, and production of audio recordings were dismissed for lack of relevance or because the requested materials were not in the defendants’ possession.