Lou Ann M. Pope

The defendants moved for security for costs under Rule 56.01 of the Rules of Civil Procedure on the basis that the plaintiffs had moved to England and were no longer resident in Ontario.

The court accepted that the threshold requirement under Rule 56.01(1)(a) was met because the plaintiffs resided outside the jurisdiction.

However, after assessing the second stage of the analysis, the court concluded that requiring security would be unjust.

The plaintiffs demonstrated that posting security would cause financial hardship and the court found the personal injury action had strong merits, including a likely finding of liability in a rear-end collision and medical evidence supporting a permanent impairment meeting the statutory threshold under the Insurance Act.

Balancing the competing interests, the motion for security for costs was dismissed.

The plaintiff moved under Rule 37.14 to set aside a registrar’s second dismissal order for delay in an action arising from alleged workplace exposure, disability benefits denial, wrongful dismissal, and negligence claims.

Applying the Reid four-factor framework, the court found the plaintiff failed to adequately explain the overall delay and failed to establish inadvertence in missing the court-imposed deadline, although the motion was brought promptly.

The court nevertheless held there was neither presumptive nor actual prejudice to the opposing defendants, emphasizing the extensive documentary production, early notice of the claim, and the absence of evidence of lost documents or impaired witnesses.

Taking a contextual approach, the court concluded it was just to restore the action subject to a strict timetable, while awarding costs to two opposing defendants.

The moving parties sought to set aside a registrar's dismissal order made for delay under the Rules of Civil Procedure in an action alleging police misconduct, bad faith investigation, and Charter breaches arising from events tied to a prior criminal prosecution.

Applying the established four-factor framework, the court held the moving parties failed to adequately explain the litigation delay, failed to show inadvertence in missing the deadline, and failed to bring the motion promptly.

The court further found a presumption of prejudice arising from the passage of time, held that presumption was not rebutted, and found actual prejudice to the police defendants due to unavailable witnesses and faded memories.

In a contextual assessment, the court also accepted that there was no valid cause of action against the provincial Crown on the pleaded facts.

The motion to set aside the dismissal was dismissed, with no costs sought.

On a discovery motion, the moving defendants sought an order compelling answers to undertakings and refusals arising from the plaintiff's examination for discovery in an action alleging breach of contract and defamation.

The court held that questions concerning the plaintiff's personal involvement with a tax shelter and related CRA dealings were irrelevant and constituted an impermissible fishing expedition.

However, questions directed to which former clients did not follow the plaintiff to his new dealer because of the defendants' conduct, and related revenue information necessary to quantify damages, were relevant and had to be answered.

The result was divided, and no costs were awarded.

The plaintiffs brought a motion to set aside a Registrar's order dismissing their action for delay under Rule 48.14(1).

The action arose from alleged environmental contamination by the defendants' dry cleaning operations.

The court applied the four-factor test for setting aside a dismissal order.

While finding no prejudice to the defendants, the court concluded the plaintiffs failed to adequately explain the litigation delay or their failure to meet the set down deadline.

Furthermore, the plaintiffs' claims were already preserved in a crossclaim in a related, more advanced action.

To avoid multiplicity of proceedings, the motion to set aside the dismissal was dismissed.

The plaintiff brought a motion for leave to deliver a jury notice after the close of pleadings and after the action was set down for trial, and to compel the defendants to comply with undertakings given at discovery.

The underlying action involves claims of unpaid wages, false imprisonment, and unsafe working conditions.

The court granted leave to deliver the jury notice, finding that the delay was due to inadvertence and there was no prejudice to the defendants.

The court also ordered the defendants to comply with the outstanding undertakings, finding they had not made 'best efforts' to do so.

No costs were awarded due to the plaintiff's delay in bringing the motion.

Following an undertakings and refusals motion, the defendant sought partial indemnity costs of $8,111.87.

The court found the requested amount excessive given the straightforward nature of the motion, which was argued within one hour and did not involve cross-examinations.

The court nevertheless recognized that the plaintiffs satisfied numerous undertakings after the motion was brought and had been successful on several points.

Balancing these factors, the court fixed the defendant’s partial indemnity costs at $2,500 inclusive of HST and disbursements.

The parties brought cross-motions to compel answers to questions refused during examinations for discovery in an action alleging negligence, breach of fiduciary duty, and breach of contract against an investment advisor and his firm.

The Master ordered the defendants to answer questions regarding the advisor's qualifications and the firm's legal position on vicarious liability, but found questions about the advisor's personal finances and other clients irrelevant.

The Master ordered the plaintiffs to answer questions regarding the calculation of their claimed damages and the factual basis for their allegations regarding loan arrangements and unsuitable investments, rejecting the argument that these questions were improper requests for particulars.

Judgment creditors sought leave under Rule 60.18(3) of the Rules of Civil Procedure to examine a director of the judgment debtor in aid of execution following default on a settlement judgment.

Prior to the examination, the creditors commenced a separate action alleging fraudulent conveyances, bulk sales violations, and oppressive conduct relating to transfers of the debtor’s assets.

The court held that once the new action covering the same subject matter had been commenced, the purpose of an examination in aid of execution was exhausted because the creditor’s rights were merged into the action.

Allowing the examination would create an unfair multiplicity of proceedings and effectively permit duplicate discovery.

The motion was dismissed and costs were awarded to the defendant.

The insurer brought a motion to have an insurance coverage action tried together with an earlier negligence action arising from the same residential renovation damage.

The court held that causation of the alleged property damage was a common and critical factual issue in both actions, and that the relief claimed arose out of the same occurrence or series of occurrences.

Applying the Rule 6.01 discretionary framework and the non-exhaustive factors from prior authority, the court found that overlapping evidence, risk of inconsistent findings, and avoidance of duplicate expert and witness testimony strongly favoured a joint trial.

The motion was granted, joint procedural directions were made, and there was no order as to costs.

The moving defendant sought costs after the plaintiff discontinued two related personal injury actions arising from an alleged street altercation.

The court held that the plaintiff had bona fide causes of action in both proceedings and that neither action was frivolous or vexatious, but nonetheless exercised its discretion under rule 23.05 and rule 57.01 to award costs because the discontinuances put the moving defendant to inordinate expense.

The court emphasized the fact-specific nature of costs on discontinuance and treated the second action and its rapid discontinuance as justifying compensation despite the bona fides of the pleadings.

Partial indemnity costs were awarded for both actions and for the two motions.

The defendants, Winston Gauntlett Mattis and Fiona Ann Docherty, brought a motion to dismiss the plaintiffs' action for delay under Rule 24.01.

The action, commenced in 2006, involved allegations of mortgage fraud and solicitor negligence.

The court found that while there was inexcusable delay by the plaintiffs, the presumption of prejudice was partially rebutted regarding documentary evidence.

The motion was dismissed for the plaintiffs represented by counsel, who had recently taken steps to move the action forward, but granted for the unrepresented plaintiffs who failed to respond to the motion.

Following the discontinuance of the plaintiffs' action, the court determined the costs payable to the defendants.

The plaintiffs had sought to discontinue the action without costs, which was denied.

The court awarded partial indemnity costs to the defendants for both the action and the motion, noting the plaintiffs' reprehensible conduct in continuing the action against personal defendants despite admitting it was commenced in error.

The plaintiffs were ordered to pay a total of $53,250 in costs to the various defendants.

The moving defendants sought leave to issue a third party claim for contribution and indemnity against a proposed third party said to have manufactured a component of the crane brake system involved in a motor vehicle accident, or alternatively to consolidate the action with a related contribution and indemnity action.

The court held that, notwithstanding Rule 29.02(1.2), it had no authority to permit commencement of a statute-barred third party claim, and found the claim was discoverable no later than February 23, 2012 and was not advanced within the two-year limitation period under the Limitations Act, 2002.

The court further held that no useful purpose would be served by consolidation because the related actions had already been ordered to be tried together and consolidation would likely add costs through consolidated pleadings.

The motion was dismissed, with costs to the proposed third party.

The moving party sought leave to amend a statement of claim to add a condominium corporation as a defendant more than two years after an alleged stairway collapse.

The court held that on a motion to add a party after the apparent expiry of the limitation period, the court may determine whether the claim is statute-barred where the evidentiary record shows the plaintiff knew or ought to have known the identity and potential liability of the proposed defendant.

Applying the discoverability principles under the Limitations Act, 2002, the court found the plaintiff had actual or constructive knowledge from contemporaneous contracts, correspondence, cheques, and a failure to conduct a simple property search within the limitation period.

The motion to add the proposed defendant was dismissed, and costs were awarded to the responding parties.

This costs decision addressed whether counsel for the plaintiff should be personally liable under rule 57.07(1) for costs thrown away arising from unnecessary attendance on a prior return of a transfer motion.

Applying the two-step framework governing personal costs against lawyers, the court held that counsel's conduct had caused unnecessary costs, but declined to impose personal liability because solicitor-client privilege and the possibility that counsel acted on client instructions made such an order unwarranted.

The previously ordered $550 was directed to be paid by the plaintiff within 30 days.

The plaintiff's collateral requests attacking the earlier endorsement and seeking assessment of prior costs were rejected, and the defendants' request for an additional $250 was also denied.

The defendants moved for an order compelling the plaintiff in a motor vehicle personal injury action to undergo a further orthopaedic examination.

Applying the necessity, fairness and prejudice framework governing further defence medical examinations, the court held the evidentiary record did not establish a legitimate need for another assessment.

The defendants had already obtained a physiatry assessment addressing causation, impairment and prognosis, and failed to show a material change in condition after that defence assessment.

The motion was denied, and costs were awarded to the plaintiff on a partial indemnity scale.

The defendants brought a motion seeking an order compelling the plaintiff to attend a defence neuropsychological examination in a personal injury action arising from a motor vehicle accident.

The plaintiff alleged significant physical, psychological, and cognitive impairments, including a head injury and memory problems, and had obtained expert reports including a neuropsychological opinion.

The defendants had already arranged three defence medical examinations but sought a fourth assessment by a neuropsychologist to respond to the plaintiff’s expert evidence.

Applying the principles of necessity, fairness, and prejudice under s. 105 of the Courts of Justice Act and Rule 33.02 of the Rules of Civil Procedure, the court held that a neuropsychological assessment was necessary to level the playing field.

The court found the defence would be prejudiced without an opportunity to respond to the plaintiff’s neuropsychological report and permitted the examination to proceed over one and a half days across two days.

On a reference concerning the admissibility of proposed expert evidence, the court considered whether an accountant’s report met the criteria for expert evidence under the framework established in R. v. Mohan.

The issue focused on the necessity requirement and whether the expert’s opinion would assist the trier of fact through independent analysis.

The court found the report was based largely on the applicant’s instructions and assumptions rather than the expert’s own analysis and conclusions.

As a result, the evidence lacked the independence required of expert opinion evidence and functioned merely as advocacy for the applicant’s position.

The proposed expert evidence was therefore excluded.

The defendant moved for security for costs under Rule 56.01(1)(a) and (d) of the Rules of Civil Procedure on the basis that the plaintiff corporation was resident outside Ontario and lacked assets within the jurisdiction.

The plaintiff argued that it possessed sufficient assets in Michigan and that reciprocal enforcement legislation would permit enforcement of any costs award there, and also relied on the defendant’s delay in bringing the motion.

The court held that the defendant met the threshold for ordering security because the plaintiff was a non-resident corporation with insufficient Ontario assets and had failed to provide convincing evidence of sufficient exigible assets in Michigan.

While the defendant had delayed bringing the motion for several years, the circumstances justified ordering security only for costs incurred after the motion rather than the full estimated costs of the action.

The plaintiff was ordered to post staged security totalling $35,000.