Masiel A. Matus

The defendants in two related oppression actions brought a motion to compel the plaintiffs to re-attend examinations for discovery to answer refused questions and to produce a solicitor's file.

The defendants also sought leave to examine a non-party.

The refused questions related to the plaintiffs' consultations with lawyers, which the defendants argued were relevant to their limitation period defence and discoverability.

The court dismissed the motion, finding that the requested information and files were protected by solicitor-client privilege, which had not been waived, and were not relevant to the discoverability issue since the consultations occurred within the two-year limitation period.

The request to examine the non-party was also dismissed as the communications were privileged.

The moving parties brought motions for leave to appeal the orders of the motion judge dated March 22, 2023.

The Divisional Court dismissed the motions for leave to appeal and awarded costs to the responding party in the aggregate amount of $20,000.

The plaintiff brought a motion for leave to amend his statement of claim under Rule 26.01 of the Rules of Civil Procedure to add a claim for malicious prosecution after related criminal charges had been withdrawn.

The defendants opposed the amendment, arguing the limitation period had expired and the proposed amendment constituted a new cause of action.

The court held that the amendment did not introduce a new cause of action because the material facts supporting malicious prosecution had already been pleaded, except for the favourable termination of the criminal proceedings.

The amendment merely added the subsequently occurring fact of withdrawal of the charges and an alternative legal claim arising from the same factual matrix.

Leave to amend was granted and the plaintiff was awarded nominal costs.