Marc E. Smith

The defendants in a medical malpractice action brought a motion for the production of documents from the plaintiffs' lawyer's file prior to cross-examinations on affidavits.

The affidavits were filed in support of the plaintiffs' pending motion to extend the time to set the action down for trial.

The defendants argued the plaintiffs waived privilege by referring to the lawyer's steps to advance the litigation.

The court found a limited waiver of litigation privilege regarding the fact and timing of the lawyer's communications with medical experts, but held that the plaintiffs were not required to produce the corroborating documents prior to the cross-examination.

The motion was largely dismissed, with the plaintiffs ordered only to have redacted corroborating documents available at the cross-examination.

The defendant insurer brought a motion seeking a stay of proceedings on the basis that the Ontario court lacked jurisdiction or, alternatively, that Québec was the more appropriate forum under the doctrine of forum non conveniens.

The action arose from an Ontario motor vehicle accident that left the plaintiff paraplegic and resulted in a substantial judgment against the insured tortfeasors, which the plaintiff sought to enforce against insurers under s. 258 of the Insurance Act.

The court applied the two‑step jurisdiction analysis and found a real and substantial connection to Ontario, including the location of the accident, residence of parties, and application of Ontario law.

The court also held that Québec was not a clearly more convenient forum and noted that transferring the matter would deprive the plaintiff of the right to a jury trial.

The motion for a stay was dismissed.

The plaintiffs sought costs on a substantial indemnity basis following a motion for directions on how to implement a Consent Judgment.

The responding party argued that no costs should be awarded because the original Minutes of Settlement and Consent Judgment were deficient and failed to include necessary terms.

The court found that because the Consent Judgment was unclear and both parties failed to include terms on how to implement it, the motion was necessary.

The court ordered that both parties bear their own costs.

The respondents sought costs after the applicants abandoned an application seeking, among other relief, capacity assessments of elderly parents and orders concerning access, guardianship, and financial control.

Under Rule 38.08(3) of the Rules of Civil Procedure, a respondent is presumptively entitled to costs when an application is abandoned unless the court orders otherwise.

The court held that the applicants had some justification for commencing the proceeding, given concerns about potential undue influence over the parents and the absence of independent verification of their wishes.

The application disclosed a bona fide cause of action that was neither frivolous nor vexatious, and it was discontinued shortly after independent confirmation of the parents’ intentions was provided.

In the circumstances, the court exercised its discretion to depart from the usual rule and permitted the abandonment without costs, with no costs awarded for the motion itself.