L. La Horey

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.