Lou Ann M. Pope

The defendant brought a motion under Rule 31.10 of the Rules of Civil Procedure to examine three non-party medical professionals for discovery.

The underlying action involved a plaintiff who became quadriplegic after an incident in a swimming pool.

The defendant sought to examine the non-parties regarding hospital records indicating the plaintiff had stated he dove into the pool, contradicting his discovery evidence that he fell from a ladder.

The court granted the motion, finding that the non-parties had information relevant to the material issue of liability, the defendant was unable to obtain the information from the plaintiff, and it would be unfair to require the defendant to proceed to trial without examining them.

Costs were awarded to the defendant.

Following a prior decision granting summary judgment to the plaintiff against one defendant, the court determined the quantum of costs payable.

The plaintiff relied on a valid Rule 49 offer to settle and sought substantial indemnity costs after the offer and partial indemnity costs before it.

The court reviewed the reasonableness of the fees claimed, reduced certain hours and travel expenses, and apportioned costs to reflect that judgment was obtained only against one defendant.

Applying the appropriate indemnity scales and reductions, the court fixed the total recoverable fees, taxes, and disbursements.

Following dismissal of the action for delay, the defendants sought substantial indemnity costs based on allegations of fraud made against them and the plaintiff’s delay in prosecuting the action.

The court rejected the argument that the action itself constituted an abuse of process merely because a prior action existed, noting the claims were not identical and the matter had not been decided on its merits.

However, the court found the plaintiff’s delay in prosecuting the action was contumelious, inexcusable, and unexplained, which justified an elevated costs award.

Substantial indemnity costs were therefore awarded to the defendants despite the absence of a trial on the merits.

The court also noted that while a Rule 49 offer had been served, the award of substantial indemnity costs made it unnecessary to determine whether that offer independently justified enhanced costs.

In a personal injury action arising from a motor vehicle accident, the plaintiffs sought leave to amend their statement of claim to significantly increase claims for future care, housekeeping, and income loss.

The defendant did not oppose the amendment but sought orders compelling a further examination for discovery and requiring the plaintiff to attend a defence in-home occupational therapy assessment.

The court held the defendant had not met the requirements under Rule 31.09 to justify a further discovery because there was no evidence the plaintiff’s prior answers were incomplete or incorrect.

However, the court exercised its discretion to order a non‑medical occupational therapy assessment, finding that the plaintiff had placed functional limitations and significant future care costs in issue and fairness required the defendant be able to obtain comparable evidence.

The motion for further discovery was denied, but the defence occupational therapy assessment was ordered and costs were awarded partially to the defendant.

Following a contested status hearing regarding dismissal for delay under rule 48.14 of the Rules of Civil Procedure, the court addressed costs.

One defendant had settled the motion with the plaintiffs without costs, while the remaining defendant continued to pursue the dismissal motion.

The court rejected the argument that the continuing defendant should not bear responsibility for the plaintiffs’ motion costs because the motion had originally been initiated by both defendants and he continued to rely on the joint materials after settlement.

Considering the defendants’ conduct and the delays caused by their insistence on pursuing dismissal rather than agreeing to a timetable, the court found it just to award costs to the plaintiffs.

The plaintiffs’ claimed costs were reduced due to insufficient supporting detail.

Following dismissal of a civil action for delay and failure to pay prior costs orders, the successful defendants sought costs of both the dismissal motion and the underlying action.

The court considered the factors under Rule 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, emphasizing the plaintiff’s conduct which significantly prolonged the proceeding over several years.

Numerous unsuccessful motions and appeals by the plaintiff, combined with unpaid prior costs awards, were found to have unnecessarily lengthened the litigation.

While the defendants claimed substantial partial indemnity costs, the court reduced the requested amounts as excessive and disallowed certain items.

Costs were fixed at $35,500 for the motion and action combined, payable within six months, in addition to earlier outstanding cost orders.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendant sought dismissal of an investment-related civil action for delay.

The plaintiffs alleged negligent investment advice, breach of fiduciary duty, breach of contract, and negligent misrepresentation relating to the commutation of pensions into risky investments.

Applying the two-part conjunctive test from appellate jurisprudence, the court considered whether the plaintiffs provided an acceptable explanation for the delay and whether the defendant would suffer non-compensable prejudice if the action continued.

The court found the delays were reasonably explained by ongoing regulatory complaints, counsel changes, procedural steps, and motions in the litigation.

The plaintiffs also successfully rebutted any presumption of prejudice because relevant documents were largely in the defendant’s possession and witnesses remained available.

The plaintiff freight broker brought a subrogated action for $60,000 after a shipment of frozen food was lost in transit between Illinois and Ontario.

The plaintiff moved for summary judgment against the defendant carrier, Load Solutions Inc. The court found that the plaintiff had adduced sufficient evidence to prove the contract of carriage and the carrier's failure to deliver the goods.

The defendant failed to put its best foot forward or provide evidence to raise a genuine issue requiring a trial.

The motion for summary judgment was granted.

The defendants brought a motion to dismiss the plaintiff’s action for delay and failure to comply with a case conference order requiring answers to written discovery questions.

The court considered the principles governing dismissal for delay under Rule 24.01 of the Rules of Civil Procedure and sanctions for failure to comply with interlocutory orders under Rule 60.12.

The plaintiff failed to provide responding motion materials, failed to comply with a court-ordered timetable, and delayed approximately 21 months in responding to written discovery questions.

The court found the delay inexcusable and contumelious and held that the plaintiff failed to rebut the presumption of prejudice arising from delay after the limitation period.

The action against the moving defendants was dismissed with costs.

The defendants sought to dismiss the plaintiffs' medical malpractice action for delay at a status hearing under Rule 48.14.

The action was commenced in 2007, but the plaintiffs failed to advance the litigation, missing deadlines for documentary discovery and examinations for discovery.

The court found a complete lack of communication between the plaintiffs and their counsel, and no acceptable explanation for the delay.

The court also found that the defendants would suffer prejudice due to the passage of time, as the events occurred in 2005.

The action was dismissed for delay.

The defendants brought motions to compel answers to refusals and undertakings given during the plaintiff’s examination for discovery in a civil action alleging negligent investigation, defamation, abuse of statutory powers, breach of fiduciary duty, and mental distress arising from an erroneous police press release naming the plaintiff in relation to child pornography charges.

The court considered the relevance and proportionality of various discovery questions concerning related defamation actions, settlement amounts, the plaintiff’s health and reputation, his relationship with a convicted roommate, and mitigation of damages.

The court held that certain questions relating to settlements in related actions and mitigation were relevant and should be answered, while many others were properly refused as irrelevant or disproportionate.

The plaintiff was ordered to re-attend discovery to answer specific questions and to satisfy outstanding undertakings within 60 days.

The defendants brought a motion to dismiss the plaintiff's action due to her failure to pay five outstanding costs orders totaling over $7,700, and alternatively for delay.

The plaintiff, a law school graduate acting in person, argued she was impecunious and that the delay was justified by concurrent proceedings before the Human Rights Tribunal.

The court rejected the impecuniosity claim due to lack of evidence and found the plaintiff had flagrantly ignored court orders and failed to advance the action for over seven years.

The motion was granted and the action was dismissed for both failure to pay costs and inexcusable delay.

A third party sought leave to amend his statement of defence to plead a limitation period under the Limitations Act, 2002 in response to a third party claim for contribution and indemnity alleging breach of fiduciary duty and negligence in a mortgage transaction.

The defendants opposed the amendment, arguing that allowing it after the expiry of the limitation period would cause non-compensable prejudice by foreclosing potential claims against their former counsel.

The court held that although a presumption of prejudice arises where a limitation period has expired, special circumstances rebutted the presumption because the defendants had advance notice of the proposed amendment and sufficient time to pursue any related claims.

The court concluded that any prejudice was self-created and granted leave to amend the pleading pursuant to Rule 26.01 of the Rules of Civil Procedure.

The defendant brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing that the corporate plaintiff lacked sufficient assets in Ontario to satisfy a potential costs award.

The court also addressed a request by the defendant for leave under Rule 39.02(2) to file a late affidavit after cross‑examinations, which was refused because the evidence should have been delivered earlier and did not justify departure from the rule’s purpose of ensuring parties know the case to meet before cross‑examination.

On the security for costs issue, the court found there was good reason to believe the plaintiff had insufficient assets, given substantial debts and writs of execution.

However, the plaintiff failed to establish impecuniosity due to insufficient evidence regarding the finances of the shareholder and the principal beneficiary of the action.

Although the claim was found to have a good chance of success, balancing the interests of the parties justified ordering staged security for costs.

The plaintiff brought a refusals and undertakings motion arising from the cross-examinations of two deponents on the plaintiff's pending partial summary judgment motion for rent arrears under a commercial lease.

The plaintiff sought to strike the affidavits or compel answers and document production regarding corporate liability and the removal of fixtures.

The court applied the principles from Ontario v. Rothmans Inc. regarding the scope of cross-examination on an affidavit.

The court ordered the deponents to reattend to answer certain relevant questions and produce specific documents, but declined to compel answers to irrelevant questions or strike the affidavits.

The defendant insurer brought a motion relating to a defence medical examination conducted under s. 105 of the Courts of Justice Act.

After the examination, the examining physician disclosed that her fellowship in physical medicine and rehabilitation had been withdrawn before she issued a report.

The court held that because the examination had been conducted by a licensed physician, the examiner was required under rule 33.06 of the Rules of Civil Procedure to prepare and deliver a written report, which the defendant was then required to serve on the plaintiff.

The defendant’s request was treated as a request for a further medical examination under s. 105(4), which was permitted only after service of the first report.

The court also directed that the subsequent physiatry examination be conducted in Windsor for the plaintiff’s convenience.

The plaintiff was required to show cause at a status hearing why its action for fraudulent conveyance should not be dismissed for delay.

The defendants sought dismissal, arguing the plaintiff took no steps for extended periods.

The Master found that while a 12-month delay was unexplained, the plaintiff had been actively pursuing the action against another defendant.

Finding no non-compensable prejudice to the defendants, the Master declined to dismiss the action and ordered a timetable for next steps.

The plaintiff requested a status hearing after receiving a status notice indicating the action would be dismissed for delay.

The plaintiff explained the delay was due to the sole director's separation, loss of confidence in former counsel, and financial difficulties.

The court found the plaintiff adequately explained the delay and that the defendant would suffer no non-compensable prejudice if the action proceeded.

The court declined to dismiss the action, ordered a timetable for the remaining steps, and awarded no costs.

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 to amend the statement of claim to add his insurer as a defendant under the OPCF 44R Family Protection Endorsement, alleging that the tortfeasor was an inadequately insured motorist.

The insurer opposed the motion, arguing that the proposed claim was not legally tenable and was barred by limitation periods.

The court held that, on the undisputed insurance limits and facts alleged, the definition of “inadequately insured motorist” in the endorsement could not be met whether the plaintiff or the other driver was found to be operating the vehicle.

Because the proposed amendment could not succeed in law, allowing it would create non-compensable prejudice.

The motion to amend the statement of claim was therefore dismissed.