Lou Ann M. Pope

The plaintiffs sought costs for undertakings and refusals motions brought against several defendants in a medical malpractice action.

The court awarded the plaintiffs $6,800 in costs against five defendant physicians who failed to answer undertakings until after the motion was served.

However, the court awarded costs of $3,257.64 to another defendant physician who was successful on the single refusal argued and had answered undertakings promptly.

No costs were awarded against two other defendants who resolved their issues prior to the hearing.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rules 24.01(2) and 48.14(1) of the Rules of Civil Procedure.

The action, arising from a 2010 theft and vandalism incident, was struck from the trial list in April 2015 and not restored.

The court found inordinate and inexcusable delay caused by the plaintiff's counsel, which resulted in a presumption of prejudice.

The plaintiff failed to rebut this presumption, as relevant documents were not produced and a key witness's memory had faded.

The motion was granted and the action was dismissed.

The defendants brought a motion to compel the plaintiffs' affiants to answer undertakings and refusals from their cross-examinations.

The primary issue was whether the plaintiffs waived solicitor-client privilege over their counsel's file regarding a business sale by placing their state of mind and legal advice in issue in their pleadings and affidavits.

The court found that the plaintiffs had waived privilege and ordered the production of the entire file and answers to related questions.

However, the court upheld refusals relating to the Assignment of Guarantees, legal accounts, and questions of law or relevance.

The motion was granted in part.

Following the dismissal of the plaintiff's refusals motion and the granting of the defendants' motion to discharge certificates of pending litigation, the court determined the costs of the proceedings.

The court awarded the plaintiff $4,095 for a successful adjournment request, and awarded the defendants $2,000 for the refusals motion.

For the main motion to discharge the CPLs, the court awarded the defendants substantial indemnity costs of $75,000 due to the plaintiff's failure to make full and fair disclosure on its initial ex parte motion and its failure to accept a reasonable Rule 49 offer to settle.

The net costs payable by the plaintiff to the defendants were fixed at $72,905.

The plaintiffs brought a motion to amend their statement of claim to correct the names of defendants 'John Doe 2' and 'XYZ Company' to Chanthan Mech and Vitou Huot on the grounds of misnomer, after the limitation period had expired.

The action arose from a fatal altercation at a restaurant during a social function.

The court applied the 'litigation finger' test for misnomer.

The court granted the motion to substitute 'John Doe 2' with Chanthan Mech, finding sufficient evidence that she was an organizer of the event and would have recognized she was the intended defendant.

The court dismissed the motion to substitute 'XYZ Company' with Vitou Huot, finding insufficient evidence that he was an organizer.

The defendants, Raphael David Junior Hassan and Carol Precious Hassan, brought a motion seeking an order for the plaintiff, Nicola Federico, to attend a further defence neurological examination and to vary a prior court order regarding timelines for defence medical assessments.

The plaintiff opposed, arguing the defendants had not met the test for a further assessment and were not compliant with the existing timeline.

The court granted the defendants' motion, finding a neurological assessment necessary for trial fairness given the plaintiff's ongoing neurological complaints and expert reports.

The court also extended the timeline for the assessment and the service of the responding neurological report, noting the plaintiffs' inconsistent stance on the original deadline.

The defendant, Harbouredge Mortgage Investment Corporation, brought motions for security for costs, transfer of action, and a stay of action.

The plaintiff, Morgis Properties Limited, had previously obtained an ex parte certificate of pending litigation (CPL), which was later discharged.

The court granted the defendant's motion for security for costs, ordering the plaintiff to pay $30,000 on a pay-as-you-go basis, finding the plaintiff had insufficient assets and its president had the financial ability to pay.

The defendant's motion to transfer the action was dismissed without prejudice due to procedural non-compliance, and the motion for a stay of action was dismissed as Rule 56.05 already addresses the inability to take steps without providing security.

The court awarded the defendant substantial indemnity costs for the CPL motion and partial indemnity costs for the security for costs motion, totaling $18,200, due to the plaintiff's improper conduct and lack of a reasonable claim.

The plaintiff sought leave to amend its statement of claim to add the defendant's wife as a party and assert allegations of fraudulent conveyance, fraudulent misrepresentation, and alter ego liability.

The defendant opposed, arguing lack of particulars and that some claims were statute-barred.

The court found the proposed claims were not statute-barred as the limitation period commenced upon discovery of new facts.

However, the court dismissed the plaintiff's motion to amend due to insufficient particulars of the alleged fraud, but granted leave to amend the statement of claim upon providing the necessary details.

Costs were awarded to the defendant.

The defendant brought a motion to remove the plaintiffs' counsel, Robert Tanner and Tanner & Guiney, on the grounds of a disqualifying conflict of interest.

The defendant argued that Mr. Tanner would likely be an important witness at trial and had a direct interest in the litigation, as the current action alleged professional negligence against the defendant in an underlying action where Tanner subsequently acted for the plaintiffs.

The court considered the balancing of maintaining high standards of the legal profession, the integrity of the justice system, and the litigant's right to counsel of choice.

The Master found that Tanner's role as an advocate could not be reconciled with his role as a witness, given the material facts he would need to testify about regarding his actions in the underlying action and the allegations of his own potential negligence.

The motion was granted, and Tanner was removed as counsel.

The plaintiff sought a status hearing under Rule 48.14(5) of the Rules of Civil Procedure to establish a timetable for the action and extend the time to set it down for trial.

The motion was opposed by two defendants, Sulekha Patel and Nikita Patel.

The court applied the two-part test for contested status hearings, requiring the plaintiff to provide an acceptable explanation for delay and demonstrate that the defendants would suffer no non-compensable prejudice.

The court found the plaintiff's explanation, citing corporate financial and organizational difficulties, to be adequate.

It also determined that the opposing defendants had not suffered non-compensable prejudice, partly due to their own inaction during periods of delay.

The motion was granted, and a case conference was ordered to set a timetable for the remaining steps, including a potential summary judgment motion, discoveries, and mediation.

Costs were ordered to be borne by each party.

The court heard two motions: the defendants' motion to discharge a Certificate of Pending Litigation (CPL) and the plaintiff's cross-motion to compel answers on cross-examination.

The plaintiff's motion was dismissed as overly broad.

The defendants' motion to discharge the CPL was granted.

The court found that the plaintiff failed to make full and frank disclosure on its ex parte CPL application and that there was no triable issue regarding the plaintiff's claim to an interest in the land.

The Letter of Intent and subsequent amending agreements were deemed unenforceable as they lacked essential terms, constituting "agreements to agree."

The plaintiff moved for an order compelling the defendant to produce a further affidavit of documents and, subsequently, to inspect the defendant's computer hard drive after learning the defendant destroyed its working paper file.

The court granted the order for hard drive inspection, citing the unusual circumstances of the defendant destroying relevant evidence in the face of fraud allegations and inconsistent testimony, and dismissed the request for a further affidavit of documents without prejudice.

The respondent, Zhong Wei, sought costs against the applicant, Jonathan Beatty, and his counsel, John Lo Faso, on a joint and several basis, for a motion to compel answers to undertakings and refusals.

The Master found that counsel's conduct during cross-examination was improper and caused unnecessary costs and delay.

The Master exercised discretion under Rule 57.07(1)(c) to order counsel to personally pay a portion of Wei's costs, deferring the quantum determination pending the filing of settlement offers.

The applicant, CVC Ardellini Investments Inc., sought leave to file a second supplementary application record, or alternatively, a supplementary affidavit from Robert A. Izsak and an affidavit from Elio Monaco.

The application aimed to obtain an order assigning the respondent's mortgage on the basis of default.

The court applied Rule 39.02(2) of the Rules of Civil Procedure, which governs the filing of affidavits after cross-examination.

Leave was granted only for paragraph 8 of Mr. Izsak's supplementary affidavit, which attached the mortgage amending agreement, as it responded to information previously refused during cross-examination due to a misinterpretation of PIPEDA.

All other parts of Mr. Izsak's affidavit and Mr. Monaco's affidavit were deemed inadmissible as they contained information known prior to cross-examination, did not respond to matters raised on cross-examination, or were irrelevant.

The applicant's motion was dismissed in part, and the respondent was awarded substantial indemnity costs.

The plaintiff, Lidia Kuleshnyk, brought a motion seeking an order to preserve future vendor take-back mortgage payments from the sale of property owned by the defendant, Herta Kuleshnyk, by having them paid into court.

The motion was brought pursuant to Rules 45.01 and 45.02 of the Rules of Civil Procedure.

The court applied the three-part test from Sadie Moranis Realty Corp. v. 1667038 Ontario Inc., finding that the plaintiff established a claim to a specific identifiable fund (future mortgage payments) and a serious issue to be tried regarding her entitlement under a 2009 agreement.

While there was no direct evidence of dissipation, the court found a real concern given the defendant's prior actions (reverse mortgage without knowledge).

The court ordered the final mortgage payment of approximately $1,581,000 due on April 8, 2019, to be paid into court, allowing the defendant to retain earlier payments and funds held in trust to manage tax obligations.

No costs were awarded as the result was divided.

The plaintiff's counsel of record brought a motion seeking directions for a capacity assessment of the plaintiff and the appointment of the Public Guardian and Trustee (PGT) as her litigation guardian.

The court dismissed the request for a capacity assessment, finding that sufficient medical evidence had already been filed.

Relying on psychological and psychiatric reports indicating the plaintiff suffered from severe cognitive deficits, paranoia, and delusions, the court found the plaintiff was a party under disability incapable of instructing counsel or making litigation decisions.

The court appointed the PGT as litigation guardian and granted counsel's motion to be removed from the record.

The respondent brought a motion for security for costs against the applicant corporation under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The court found that the applicant had ceased operations and had no assets in Ontario, satisfying the initial burden on the respondent.

The applicant failed to provide sufficient evidence of its assets or impecuniosity, particularly regarding access to funds through its shareholders, which is a high evidentiary threshold for corporate plaintiffs.

The court exercised its discretion, finding it just to order security for costs given the high probability that the respondent would be unable to collect costs if successful at trial.

The motion was granted, and the applicant was ordered to post $32,500 in security for costs and pay $7,500 in costs for the motion.

The plaintiff, Wawanesa Mutual Insurance, brought a motion to compel several defendants (corporate entities, Vishnu Lootawon, Jonathan Lootawon, Tina Lootawon, and Wayne Russell) to disclose particulars of their insurance policy and to compel attendance at examinations for discovery.

The motion arose from a subrogated action following an alleged motor vehicle accident.

The court found that Vishnu Lootawon's conduct during his examination for discovery was improper, with evasive answers and refusal to produce relevant documents.

Jonathan and Tina Lootawon failed to attend their scheduled examinations.

The court granted the plaintiff's requests, ordering the defending defendants to provide sworn affidavits of documents, produce relevant documents, disclose insurance policies, and comply with discovery obligations.

Vishnu Lootawon was ordered to re-attend discovery at his own expense, and Jonathan and Tina Lootawon were ordered to attend discovery.

Costs were awarded to the plaintiff against Vishnu, Tina, and Jonathan Lootawon.

In a defamation action arising from a Facebook post, the defendant brought an Anti-SLAPP motion to dismiss the proceeding.

The plaintiff subsequently brought a motion for particulars and document inspection to enable it to plead in response to the statement of defence and counterclaim.

The defendant argued the plaintiff's motion was prohibited as a 'further step' under section 137.1(5) of the Courts of Justice Act.

The court held that steps relevant to the Anti-SLAPP motion, such as pleadings, are not prohibited.

The court ordered the defendant to provide the requested particulars and documents, and dismissed the defendant's cross-motion to prohibit the plaintiff from bringing further motions.

The plaintiffs brought a motion seeking leave to amend their statement of claim and an order compelling the defendants to answer outstanding undertakings and refusals from examinations for discovery.

The action involves allegations that the defendants, former employees, misappropriated the plaintiffs' business.

The court ordered the defendants to produce a personal computer and bank statements, finding them relevant to the alleged misappropriation and destruction of original invoices.

The court also ordered the defendants to produce a further and better affidavit of documents, including financial records in native format.

The plaintiffs were granted leave to amend their claim to add the tort of deceit and a claim for equitable set-off regarding an Employment Standards Officer's wage order, with the court declining to apply issue estoppel to prevent the set-off claim.

The defendants' request for case management was dismissed.