Laura Paglia

The defendants brought a motion to dismiss the plaintiffs' action for inordinate delay and abuse of process, nearly 24 years after its commencement.

The plaintiffs attributed the delay to their various former counsel.

The court found the delay to be inordinate and inexcusable, with primary responsibility resting with the plaintiffs.

The presumed prejudice to the defendants due to the passage of time, faded memories, and loss of a witness was not rebutted, making a fair trial impossible.

The court also exercised its inherent jurisdiction to dismiss the action, finding the severe and aggravated delay, including breaches of court-ordered deadlines and a 7-year period of inactivity, amounted to an abuse of process.

The motion to dismiss was granted, and the action was dismissed.

The defendants brought a motion under Rule 39.03 of the Rules of Civil Procedure to compel the plaintiffs’ former lawyers to attend examinations as witnesses in aid of a motion to dismiss a 20‑year‑old action for delay.

The plaintiffs had filed affidavits attributing the delay in prosecuting the claim to the inaction and failures of their previous counsel.

The court held that the former lawyers were likely to possess relevant evidence concerning the causes of the delay and whether it was intentional or inexcusable.

By blaming their lawyers and placing the communications and conduct of counsel at issue, the plaintiffs were found to have waived solicitor‑client privilege to the extent necessary to permit examination.

The court ordered four former lawyers to attend examinations under Rule 39.03, quashed the summons against one lawyer, and directed that the examinations occur after cross‑examinations on the plaintiffs’ affidavits.

The defendants brought a motion to compel a plaintiff to answer questions refused during cross‑examination on an affidavit of documents in a negligence and misrepresentation action arising from investment advice relating to the commutation of pensions.

The refusals were based primarily on solicitor‑client privilege.

The court considered whether the plaintiff had impliedly waived privilege by placing his state of mind and instructions to former counsel in issue through his testimony and the pleadings, particularly in light of the defendants’ limitation period defence.

Balancing the principles of fairness in litigation with the protection of solicitor‑client privilege, the court held that privilege was deemed waived for certain communications relating to instructions to former counsel and advice about commuting the pension.

The plaintiff was ordered to answer three of the refusal questions and reattend for cross‑examination, while one refusal relating to quantification of damages was upheld.

The plaintiff brought a motion for leave to amend his statement of claim and to continue a stay of enforcement of a summary judgment obtained by the defendants in a related mortgage action.

The proposed amendments included allegations of forged documents by a former employee of the defendants in connection with investment transactions.

The court granted leave to amend, holding that limitation issues could be pleaded by the defendants and that the allegations were not clearly irrelevant or barred by res judicata.

However, applying Rule 20.08 of the Rules of Civil Procedure, the court declined to continue a full stay of the prior judgment, finding only a tenuous connection between the investment claim and the mortgage debt, uncertainty about the merits and damages of the plaintiff’s claim, and potential prejudice to the defendants.

The stay was partially lifted, requiring payment of $400,000 toward the judgment.