Marie T. Fortier

The plaintiff initiated three actions stemming from a motor vehicle accident: a tort claim, an underinsured motorist claim, and a solicitor's negligence claim against his former lawyer.

The defendants moved to consolidate the actions and for a broad waiver of solicitor-client privilege and the deemed undertaking rule.

The court ordered the actions to be tried together or one after the other, at the discretion of the trial judge.

It denied the broad waiver of solicitor-client privilege and the deemed undertaking rule for information from the solicitor's negligence action for use in the other two actions, emphasizing the importance of privilege.

However, it dispensed with the deemed undertaking rule for information from the tort and OPCF actions for use in the solicitor's negligence action, and between the tort and OPCF actions.

This case conference endorsement addressed the assignment of the proceeding to active case management under Rule 77 and issues concerning examinations for discovery and costs.

The defendants sought to conduct examinations for discovery by videoconference due to the COVID-19 pandemic and the plaintiff's age and health.

The plaintiff preferred written interrogatories or delayed in-person examinations.

Citing *Arconti v. Smith*, the court ordered that examinations for discovery proceed by videoconference, finding that the benefits of proceeding outweighed the plaintiff's concerns and that further delay was unreasonable.

The court also ordered submissions on costs thrown away from previously cancelled discoveries.

The bankrupt, Christopher Sean Reid, a first-time bankrupt with a substantial tax debt to the Canada Revenue Agency (CRA), sought an unconditional discharge.

The CRA opposed, requesting a conditional discharge based on the bankrupt's failure to keep proper books, non-filing of tax returns, and an alleged ability to pay surplus income.

The court found the bankrupt's testimony regarding his income and financial records lacked credibility and imputed income based on transfers from his father's business to his wife's account.

Balancing the interests of creditors, the bankrupt's rehabilitation, and the integrity of the bankruptcy process, the court determined the bankrupt was not an "honest but unfortunate debtor" and granted a conditional discharge.

The plaintiffs brought a motion to strike the defendants' statement of defence, either in its entirety or specific paragraphs, alleging breaches of pleading rules, irrelevance, scandalous, frivolous, vexatious, prolix, argumentative content, and improper allegations regarding the plaintiffs' motive.

The court also addressed a preliminary issue of settlement privilege concerning a letter.

The Master ruled the letter was protected by settlement privilege and ordered its removal from the record.

While declining to strike the entire statement of defence, the Master struck specific paragraphs (3, 50, 60, 67, 68, 71) with leave to amend, finding them to be scandalous, frivolous, and vexatious due to an absence of material facts, argumentative nature, bare allegations, inflammatory attacks, or bare conclusions and opinions.

The respondents, beneficiaries of the Estate of Toller James Montague Cranston, brought a motion for directions seeking the appointment of an Estate Trustee During Litigation (ETDL) and the removal of the current Estate Trustee, Phillippa Baran.

The respondents alleged mismanagement, particularly concerning the sale of artwork against their wishes for in-specie distribution, and conflicts of interest.

The Estate Trustee opposed, arguing the motion was a procedural tactic and that she was acting in the estate's best interests.

The court found the administration adversarial and the Trustee in a conflict of interest, granting the motion to appoint an ETDL to ensure transparent and orderly administration.

The plaintiff, San Remo Lighting, moved for summary judgment against the defendants, Am-Tech Electrical Inc. and others, alleging breach of trust obligations under the Construction Lien Act (CLA) for unpaid invoices.

Am-Tech admitted to not segregating trust monies as required by the CLA but later placed the claimed amount in its counsel's trust account.

The court, adopting reasoning from a Manitoba case, found that while a breach of trust had occurred, the subsequent reconstitution of the fund raised a genuine issue requiring a trial to fully evaluate the ramifications of the breach and the defendants' right to set-off.

The motion for summary judgment was dismissed, and the funds were ordered to be paid into court.

The defendant, Robert Gates, brought a motion for summary judgment to dismiss the action brought by the plaintiff, Melanie Gates, on the grounds that it was commenced after the expiration of the two-year limitation period under the Limitations Act, 2002.

The court found that there was a genuine issue requiring a trial regarding the discoverability of the claim, specifically when Melanie Gates knew or ought to have known that Robert Gates was a potential party at fault.

The motion for summary judgment was dismissed, and the limitation defence was left for adjudication at trial.

The defendants brought a motion to compel the plaintiff to provide particulars for allegations in her statement of claim, specifically concerning breach of the duty of good faith and fair dealing.

The court emphasized that while oral discovery can clarify details, allegations of bad faith under Rule 25.06(8) require "full particulars" to enable the defendants to plead and to limit discovery issues.

The court also clarified that a supporting affidavit from the defendant is not strictly required when the plaintiff's allegations are so general that particulars are clearly necessary.

The motion was substantially granted, requiring the plaintiff to provide specific particulars regarding mismanagement, toxic work environment, detrimental consequences, bad faith, and reputational damage.

The plaintiff brought a refusals motion to compel the defendant, Hockey Canada, to answer questions and produce documents related to its insurance policy and claims history.

The plaintiff, a former high-performance athlete, suffered quadriplegia and alleged Hockey Canada breached its duty to procure adequate insurance.

The court ordered Hockey Canada to produce un-redacted claims bordereaux and other reports, finding they were not protected by litigation or settlement privilege and that post-incident information could be relevant as remedial conduct.

However, the court required the plaintiff to serve notice on non-parties if seeking disclosure of their personal health information.

Phillips and Moulds sought to recover costs awarded against Petrelli Construction and Mr. Petrelli personally, bringing a motion for orders including striking Petrelli Construction's defence to counterclaim, compelling undertakings, and substituted service for an examination in aid of execution.

Petrelli Construction brought a cross-motion seeking a declaration that the costs order against Mr. Petrelli was unenforceable due to a consumer proposal in bankruptcy, or a referral to Bankruptcy Court, and dismissal of the counterclaim.

The court found the counterclaim discontinued under Rule 24.03, dismissing Phillips and Moulds' related requests.

The issue of the costs order's enforceability against Mr. Petrelli personally was referred to a judge in Bankruptcy Court.

Substituted service on Petrelli Construction for examination was granted, but denied for Mr. Petrelli personally.

The plaintiff brought a motion for refusals against the defendants, seeking answers and productions refused during 2012 examinations for discovery.

The defendants resisted, arguing the motion was brought past a court-ordered deadline of November 30, 2015, and that the information sought was irrelevant or res judicata.

The court found the motion was barred due to the plaintiff's failure to comply with the firm timetable set by Master Roger, which required all refusals motions to be filed by the specified deadline.

The motion was dismissed.