Lisa D. La Horey

The plaintiff brought a motion to extend the time to file a statement of claim for personal injuries arising from a motor vehicle accident.

Although the notice of action was issued within the two-year limitation period, the statement of claim was not filed within the required 30-day period due to the plaintiff's lawyer's inadvertence and staffing issues during the COVID-19 pandemic.

The court applied the Nugent factors and found that the delay was caused by inadvertence and that the defendant suffered no prejudice, as her insurer had been promptly notified of the claim.

The motion was granted, and the plaintiff was awarded partial indemnity costs.

The plaintiff in a wrongful dismissal action brought a motion to exclude emails between himself and his lawyer from the defendant's affidavit of documents.

The emails were sent using the plaintiff's corporate email account.

The court found that the plaintiff, who was the founder and former CEO of the company, had a reasonable expectation of privacy in his corporate email account, as he had used it for personal matters for over 20 years without a written policy prohibiting such use.

The court held that the emails were protected by solicitor-client privilege and ordered their removal from the affidavit of documents.

The defendants brought a motion seeking leave to amend their statement of defence and counterclaim.

The plaintiffs opposed certain amendments, arguing they constituted a withdrawal of admissions regarding Mr. Cui's employment by the plaintiff corporations.

The court found that the original pleading, drafted by a self-represented litigant, did not contain unambiguous, deliberate, and intentional admissions.

Even if admissions were withdrawn, the court determined that the three-part test for withdrawal was met, particularly given the reasonable explanation provided (self-representation and lack of legal training).

The motion to amend was granted, with the plaintiffs awarded $3,500 in costs thrown away on a substantial indemnity basis.

The defendants brought a motion to discharge a certificate of pending litigation (CPL) obtained by the plaintiff without notice against a commercial property.

The plaintiff, a shareholder in the company that originally purchased the property, alleged the property was fraudulently conveyed to another company.

The court found that while the plaintiff met the threshold test for claiming an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, specifically regarding prior litigation and settlement involving the property.

Balancing the equities, including the non-disclosure, the fact that the property was not unique, and that damages would be an adequate remedy, the court ordered the CPL discharged without security.

In a medical malpractice action alleging lack of consent to a tubal ligation, the defendant physicians brought a motion under Rule 31.10 to examine the plaintiff's husband as a non-party.

The plaintiff opposed the motion, arguing that her husband had already provided written answers and that other parties present during the consent discussions had been examined.

The court dismissed the motion, finding that the plaintiff's inability to recall certain discussions did not amount to a constructive refusal, and the defendants failed to establish they were unable to obtain the information from other sources.

The plaintiff was previously successful on a motion to amend her statement of claim on the basis of misnomer.

The parties could not agree on costs.

The plaintiff sought partial indemnity costs of $6,069.30, while the respondents argued there should be no costs because the amendment was an indulgence.

The court agreed with the respondents, finding that the relief granted was discretionary and constituted an indulgence.

Given the plaintiff's delay and the respondents' reasonable opposition, the court ordered no costs for the motion.

The plaintiff in a wrongful dismissal action brought a motion to compel answers to questions refused at an examination for discovery.

The refused questions sought production of an external law firm's unredacted fee accounts, investigation file, and unredacted board meeting minutes.

The defendants claimed solicitor-client privilege over the documents.

The court found that the law firm was retained to provide legal advice, making the investigation file privileged.

The court also held that the defendants did not waive privilege by producing the investigation report or by referring to the investigation in the plaintiff's termination letter.

The motion was dismissed.

The plaintiff brought a motion to amend her statement of claim to add the former owners of a condominium unit as defendants after the expiry of the limitation period.

The plaintiff had originally named the condominium corporation as the owner due to an incomplete title search.

The court granted the motion on the basis of the doctrine of misnomer, finding that the pleading clearly pointed the 'litigating finger' at the owners of the unit and that the proposed defendants would not suffer non-compensable prejudice.

The court rejected the alternative argument based on discoverability, noting that the true owners could have been discovered with due diligence.

The defendant brought a motion to amend its statement of defence to add a counterclaim against the plaintiff.

The proposed counterclaim alleged intentional interference with economic relations and inducing breach of contract, based solely on the plaintiff's commencement of the underlying action.

The court dismissed the motion, finding that the proposed counterclaim was legally untenable because commencing a lawsuit does not constitute an unlawful act and the defence of justification would apply to the inducing breach of contract claim.

The defendant moved to discharge a certificate of pending litigation (CPL) obtained by the plaintiff on an ex parte motion.

The plaintiff claimed a 50% interest in a condominium unit purchased by the defendant, relying on a trust agreement.

The court discharged the CPL, finding that the plaintiff failed to make full and fair disclosure of material facts on the ex parte motion, including the defendant's dispute of the claim and the plaintiff's failure to contribute to expenses.

The court also found the plaintiff failed to prosecute the action with reasonable diligence and that the equities favoured discharging the CPL, as the property was not unique and damages would be an adequate remedy.

The defendants brought a motion for security for costs against three corporate plaintiffs (former franchisees) in three related actions.

The plaintiffs argued they were impecunious and that an order would be unjust due to the defendants' delay, the existence of counterclaims, and the nature of franchise litigation.

The court found that the plaintiffs were not impecunious because their shareholders had the ability to fund the litigation.

Applying a holistic approach, the court determined it was just to order security for costs, but reduced the quantum to reflect the defendants' delay and the overlapping counterclaims.

The plaintiffs brought an urgent motion for leave to issue a certificate of pending litigation (CPL) regarding a condominium unit they had agreed to purchase from the defendants.

The plaintiffs failed to close on the scheduled closing date due to delays in obtaining title insurance and financing caused by a zoning restriction on the property.

The defendants refused to extend the closing date and treated the agreement as at an end.

The court dismissed the motion, finding no triable issue for specific performance because the plaintiffs had waived the relevant conditions and the defendants were entitled to rely on the 'time is of the essence' clause.

The court also found that the equities did not favour granting a CPL.

The plaintiff brought a motion to compel answers to questions refused during the cross-examination of the defendant and his father on affidavits filed in support of the defendant's pending motion to discharge a certificate of pending litigation.

The court ordered the defendant to produce his current driver's license as it was relevant to an issue of residence raised by the defendant.

However, the court upheld the refusals regarding the defendant's banking and tax records, finding them irrelevant to the discharge motion and overbroad.

The court also upheld a refusal regarding the defendant's reasons for previously acting in person.

The defendant was awarded partial indemnity costs of $8,500.

The plaintiff in a wrongful dismissal action sought to examine for discovery the co-worker whose sexual harassment complaint led to his termination.

The defendant hospital moved under Rule 31.03(2) to substitute a human resources manager as its discovery representative, or alternatively, for the examination to proceed by written questions.

The court dismissed the motion, finding the co-worker had direct knowledge of the critical issue of whether the harassment occurred, and the defendant failed to show that examining the co-worker would be oppressive or that the plaintiff's choice should be displaced.

The defendant employer in a wrongful dismissal action brought a motion under Rule 26.01 to amend its Statement of Defence and Counterclaim to plead after-acquired cause, alleging the plaintiff misled it regarding his involvement in a fraudulent hedge fund.

The plaintiff opposed, arguing the amendments were legally untenable because the employer knew of the allegations before termination.

The court granted the motion, finding the proposed amendments were legally tenable and the plaintiff failed to demonstrate non-compensable prejudice.

The court also ordered limited further discovery on the amendments but denied the plaintiff's request to examine a second corporate representative.

The defendants brought a motion to set aside their noting in default in an action for breach of a loan agreement.

The court found serious issues with the service of the statement of claim, noted the plaintiff's failure to seek an order for substituted service, and observed that the plaintiff precipitously noted the personal defendant in default shortly after indicating a willingness to consider an indulgence.

Applying the test from Intact v Kisel, the court exercised its discretion to set aside the noting in default and granted the defendants leave to deliver a statement of defence.