Lonny Rosen

The non-party Gore Mutual Insurance Company brought a motion under Rule 37.14(1) to vary a previous production order (the "Doi Order"), arguing that its failure to appear at the original motion was due to accident or mistake.

The plaintiff opposed the motion.

The court dismissed Gore Mutual's motion, finding that it failed to establish that its non-appearance was due to accident or mistake, but rather due to carelessness and lack of diligence in processing court documents.

The court also found that Gore Mutual failed to bring its motion forthwith and that the general claim of prejudice lacked merit, especially given the implied undertaking rule.

The appellant, Lydian Smith, appealed a Divisional Court decision affirming the Landlord and Tenant Board's finding that YouthLink Youth Services' transitional housing program was exempt from the Residential Tenancies Act, 2006 under s. 5(k).

The Court of Appeal affirmed that s. 5(k) and the newer s. 5.1 can co-exist, and that "rehabilitative or therapeutic services" in s. 5(k) include broader support services beyond medical care.

The court dismissed the appeal, finding that the Board and Divisional Court correctly interpreted the statutory exemptions and that the YouthLink program fell within the s. 5(k) exemption.

The non-party insurer sought costs for two motions regarding summonses issued by the plaintiff, which were previously found to be an attempt to abuse the court's process.

The insurer claimed over $79,000 on a substantial indemnity basis.

The court declined to award substantial indemnity costs, finding that an abuse of process finding on a summons does not automatically justify an elevated scale.

Applying the principle of fairness and reasonableness, the court fixed costs at $18,930, noting that the two motions should have been heard together and the amount claimed was disproportionate for relatively straightforward motions.

The non-party insurer, Gore Mutual Insurance Company, brought a motion to quash four summonses issued by the plaintiff under Rule 39.03(5).

The plaintiff sought to examine four Gore employees in connection with an underlying motion brought by Gore to vary a Rule 30.10 production order.

The court granted the motion and quashed the summonses, finding that the intended examinations were unnecessary, would not enhance the record for the underlying motion, and appeared to be an abuse of process aimed at obtaining advance discovery for a separate insurer misconduct claim.