Lisa D. La Horey

The moving party plaintiffs brought a motion to extend the time for service of a new expert appraisal report and for leave to amend their statement of claim to increase the damages claimed, arising from a failed real estate transaction.

The original appraisal experts had retired and were unable to testify, necessitating a replacement report.

The court found a reasonable explanation for the late service, no uncompensatable prejudice to the responding defendants, and no undue trial delay given the trial was set 11 months away.

Leave to serve the replacement appraisal was granted, as was the amendment to increase the quantum of damages claimed from $75,000 to $125,000, with costs thrown away to be quantified by the trial judge.

The plaintiffs, a law firm, brought a motion for further and better affidavits of documents from two defendants (spouses) and for their further examination for discovery.

The defendants refused to answer certain discovery questions based on spousal privilege.

The court determined that under section 11 of the Ontario Evidence Act, spousal privilege applies only to communications received from a spouse, not communications made to a spouse.

Therefore, each defendant must disclose their communications sent to their spouse but may claim privilege over communications received from their spouse.

The plaintiffs were successful and awarded costs.

This decision addresses whether solicitor-client privilege was waived by implication in a real estate dispute involving overlapping claims against a realtor and a lawyer.

The court found that, due to the plaintiff’s virtually identical allegations in two related actions, fairness and consistency required a finding of implied waiver of privilege.

The motion to compel disclosure of the lawyer’s advice and file was granted.

The defendants brought a motion under Rule 5 of the Rules of Civil Procedure to remove all defendants except Diamond & Diamond Lawyers LLP from the action, or alternatively to stay the action against those defendants.

The court dismissed the motion, finding that the plaintiffs’ pleadings provided a basis for claims against the individual and professional corporation defendants, and that joinder was permissible under Rule 5.02(2)(c) due to doubt as to the proper party from whom relief may be obtained.

The court also found that the inclusion of these parties would not unduly complicate or delay the proceedings or cause undue prejudice.

The plaintiff, The Guarantee Company of North America, sought an extension of time to serve a statement of claim or to validate service in a construction indemnity action.

The court reviewed the lengthy delay in service, the explanations provided, and the resulting prejudice to the defendants.

The motion was dismissed, with the court finding the plaintiff failed to provide a reasonable explanation for the delay and that the defendants would be prejudiced in their ability to defend the action due to lost records and faded memories.

The Arcádia Parties brought a motion to compel Alexey Kondratiev to attend an examination in aid of execution and produce documents to collect on three outstanding cost orders totaling $236,250.

The Kondratiev Parties brought a cross-motion to remove counsel for the Arcádia Parties (three of which are dissolved corporations) and to vacate writs of seizure and sale, arguing that the dissolved corporations lacked legal capacity to instruct counsel or receive payments.

The court granted the Arcádia Parties' motion, compelling the examination and document production, and dismissed the Kondratiev Parties' cross-motion, finding their arguments to be a transparent attempt to evade payment of costs.

The court awarded $20,000 in partial indemnity costs to the Arcádia Parties.

The defendant, Hariri Pontarini Architects, brought a motion seeking leave to amend its statement of defence and counterclaim to add a paragraph concerning the plaintiff's prior architects and for an order compelling the plaintiff, Corey Libfeld, to produce a further and better affidavit of documents related to those prior retainers.

The plaintiff opposed the contested amendment and the document production request.

The court dismissed the defendant's motion to add the specific paragraph (8A) to its pleading, finding it irrelevant and scandalous, and also dismissed the request for a further and better affidavit of documents, as the requested documents were not relevant to the issues in the litigation.

Uncontested amendments were granted.

Costs were awarded to the plaintiff.

The respondent lawyer, Hugh Scher, brought a motion for security for costs against his former client, Howard Buchin, who was seeking to assess the lawyer's accounts for legal services.

The respondent argued that the assessment applications were frivolous and vexatious and that the applicant had insufficient assets to pay costs, citing a consumer proposal under the Bankruptcy and Insolvency Act.

While the court accepted that the applicant had insufficient assets, it found no good reason to believe the applications were frivolous or vexatious, noting the absence of pleadings and the Law Society of Ontario's non-investigation of a complaint was not determinative of the merits.

Applying a holistic approach to the justness of the order, the court dismissed the motion for security for costs.

The plaintiffs, an Ontario corporation and its sole shareholder, initiated an action against two French residents for alleged negligent or fraudulent misrepresentations concerning the purchase of a French medical device manufacturer.

The defendants brought a motion to stay the action, arguing that the Ontario court lacked jurisdiction simpliciter and that France was a clearly more appropriate forum (forum non conveniens).

The court found that the alleged tort of misrepresentation occurred in France, where the misinformation was received and acted upon, not in Ontario where the plaintiffs felt the impact or signed some documents.

Consequently, the court determined there was no real and substantial connection to Ontario and granted the defendants' motion, staying the action.

This case involved a dispute between a mother and son over the division of proceeds from the sale of a jointly-owned cottage property.

The mother sought an equal 50/50 division, while the son claimed entitlement to a larger share based on significant renovations and maintenance he undertook, arguing unjust enrichment.

The court found an enforceable oral agreement where the son received a joint tenancy interest in exchange for undertaking renovations at his own expense.

Alternatively, the court determined that an equal division was not unjust, as the son's contributions were offset by the benefit of his ownership interest and use of the property, and there was no reasonable expectation that the joint tenancy would not be severed or the property sold during the mother's lifetime.

The plaintiffs sought an order for relief from the deemed undertaking rule to use a "Show Cause Brief" (a document obtained through discovery and a freedom of information request) in an existing complaint to the Office of the Independent Police Review Director (OIPRD) and a contemplated private criminal prosecution against two police officers not named as defendants in the civil action.

The defendants opposed, arguing a breach of the rule and potential prejudice.

The court found that the plaintiffs had breached the deemed undertaking rule but granted leave to use the Show Cause Brief, determining that the public interest in police accountability outweighed the diminished prejudice to the defendants, particularly given the public nature of the document and its availability through other means.

The plaintiff, Nedaneg Financial Corporation, brought a motion seeking certificates of pending litigation (CPLs) over four properties and, in the alternative, a preservation order.

The plaintiff alleged that the defendant Pedram Talebzadeh was the beneficial owner of the properties and that mortgages over them constituted fraudulent conveyances, intended to defeat a prior judgment.

The court dismissed the motion, finding that the balance of convenience favored the defendants.

The court noted that the properties were not unique, damages were quantifiable and a satisfactory remedy, and the plaintiff had delayed in enforcing its judgment.

The court also found that a preservation order under Rule 45.01 was not the appropriate remedy, as the plaintiff was essentially seeking a Mareva injunction without meeting its higher test, and the plaintiff's prior improper caution registrations weighed against granting equitable relief.

In this wrongful dismissal action, the plaintiff sought leave under Rule 48.04(1) to bring a motion for discovery of six former employees of the defendant, after having already set the action down for trial.

The plaintiff argued that information regarding the termination of other employees was relevant to his claim for unvested restricted share units.

The court dismissed the motion, finding no substantial or unexpected change in circumstances to justify granting leave.

The plaintiff had been aware of the defendant's refusal to provide this information for over two years and had deliberately chosen to set the action down for trial, despite being offered the option to withdraw the trial record to pursue discovery issues.

The court emphasized that discovery of non-parties is an exception, not a rule, and that the plaintiff's desire to maintain his place in the trial queue while pursuing further discovery was not a valid reason to grant leave.

The plaintiffs brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to deliver a new affidavit after cross-examinations for use on the defendants’ pending jurisdiction motion.

The court dismissed the motion, finding that the proposed evidence did not respond to matters raised on cross-examination, the plaintiffs provided no reasonable explanation for the delay in tendering the affidavit, and granting leave would cause undue prejudice and delay, contrary to the principles of efficient litigation.

The defendant moved to compel the plaintiff to reattend an independent medical examination (IME) with a psychiatrist, Dr. Brian Kirsh, for psychometric testing.

The plaintiff opposed this motion and brought a cross-motion to compel Dr. Kirsh to produce a report based on his initial assessment, arguing the examination was complete.

The court found that the initial IME was indeed completed, despite the psychiatrist's assertion of incomplete testing.

Consequently, the defendant's motion was dismissed, and the plaintiff's cross-motion was granted, ordering Dr. Kirsh to produce his report.

The plaintiff agreed to attend a subsequent IME for psychometric testing after the report's disclosure.

The plaintiffs, developers of two condominium buildings, sought an extension of time to serve statements of claim against the respective condominium corporations for unpaid promissory notes related to guest suites.

The statements of claim were issued in March 2020 but not served until July 2022, past the extended deadline of March 2021.

The delay was attributed to counsel's inadvertence.

The defendants opposed, arguing abandonment and prejudice due to witness unavailability and changes in unit ownership.

The court, applying the principles from Chiarelli v Wiens, found that the plaintiffs intended to pursue the actions and that the delay was due to inadvertence.

The court rejected the defendants' claims of prejudice, noting their early notice of the claims and that any alleged prejudice was not caused by the delay or was speculative.

The motions for extension of time were granted.

The plaintiff, Suntower Developments Limited, brought a motion for a certificate of pending litigation (CPL) over property owned by the defendants, Studios of America Corporation and Studios of America Limited Partnership.

Suntower claimed a constructive trust based on unjust enrichment and alleged wrongful conduct, stemming from an agreement where Suntower was to receive a share of cash flow for its development work, not a proprietary interest.

The defendants opposed, arguing the contract was a juristic reason precluding unjust enrichment and that monetary damages were an adequate remedy.

The court dismissed the motion, finding no triable issue for a constructive trust claim, as the contract was a juristic reason for any enrichment, and the plaintiff had no reasonable expectation of a proprietary interest.

The court also found no triable issue for a constructive trust based on wrongful conduct, as the defendants' ownership of the property did not result from any breach of obligation.

The equities also favored dismissing the CPL.

The Peel District School Board (PDSB) brought a motion to dismiss the plaintiffs' action for delay, approximately eight years after its commencement.

The action had not progressed beyond the pleadings stage.

The court applied the test for dismissal for delay, finding the delay inordinate and inexcusable.

Despite the plaintiffs' assertion that the delay was due to their former lawyer's misconduct, they failed to provide direct evidence to support this claim or rebut the presumption of prejudice.

The court found that the delay created a substantial risk that a fair trial would not be possible, and consequently, granted the PDSB's motion, dismissing the action.

The defendant brought a motion to compel the plaintiff to answer two refused questions during discovery and to produce environmental documents (Environmental Site Assessments and Risk Assessment Documents) related to alleged property contamination.

The defendant argued these documents were relevant to the pleaded issue of contamination in the Fresh as Amended Statement of Defence and Counterclaim.

The plaintiff argued the documents were not relevant or that sufficient documents had already been produced.

The court found the requested documents relevant to the issue of contamination and granted the defendant's motion, ordering production of the documents and re-attendance for discovery, with costs awarded to the defendant.

The plaintiffs brought a motion to prevent their action from being dismissed for delay under Rule 48.14(7) and to establish a timetable for the action.

The defendants opposed, arguing the five-year limitation period had passed and that they were awaiting additional documents.

The court found that the plaintiffs had provided an acceptable explanation for the delay, largely due to the defendants' refusal to provide discovery dates and their concerns about in-person discoveries during the pandemic.

The court determined that the defendants would suffer no non-compensable prejudice.

The motion was granted, a timetable was imposed, and no costs were awarded.