Mason Greenaway

The defendants sought to dismiss the plaintiffs' medical malpractice action for delay at a status hearing under Rule 48.14.

The action was commenced in 2007, but the plaintiffs failed to advance the litigation, missing deadlines for documentary discovery and examinations for discovery.

The court found a complete lack of communication between the plaintiffs and their counsel, and no acceptable explanation for the delay.

The court also found that the defendants would suffer prejudice due to the passage of time, as the events occurred in 2005.

The action was dismissed for delay.

Following the dismissal of an action on a summary judgment application, the court addressed the appropriate costs award.

The successful defendant sought recovery of legal fees and disbursements after an eight‑day hearing in which the self‑represented plaintiffs participated with the assistance of a Mandarin interpreter.

Applying s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court considered the complexity of the proceeding, the conduct of the parties, and the importance of the issues.

Although the plaintiffs prolonged the proceeding and made unfair allegations against the defendant, the circumstances did not justify substantial indemnity costs.

Costs were therefore assessed on a partial indemnity basis with reasonable hourly rates and disbursements accepted.

The defendant solicitor moved for summary judgment dismissing a legal malpractice action brought by former clients arising from a motor vehicle accident claim.

The plaintiffs alleged the solicitor failed to pursue Statutory Accident Benefits (SABS), compromised tort claims, and improperly structured litigation relating to an unidentified driver accident.

The court held that the evidentiary record demonstrated no genuine issue requiring a trial.

The plaintiffs produced no evidence establishing entitlement to the alleged benefits or that the solicitor’s conduct caused any loss.

Applying the enhanced summary judgment framework under Rule 20 and the “full appreciation” test articulated in Combined Air Mechanical Services Inc. v. Flesch, the court concluded the claims were without merit and could be resolved on the motion.

A third party sought leave to amend his statement of defence to plead a limitation period under the Limitations Act, 2002 in response to a third party claim for contribution and indemnity alleging breach of fiduciary duty and negligence in a mortgage transaction.

The defendants opposed the amendment, arguing that allowing it after the expiry of the limitation period would cause non-compensable prejudice by foreclosing potential claims against their former counsel.

The court held that although a presumption of prejudice arises where a limitation period has expired, special circumstances rebutted the presumption because the defendants had advance notice of the proposed amendment and sufficient time to pursue any related claims.

The court concluded that any prejudice was self-created and granted leave to amend the pleading pursuant to Rule 26.01 of the Rules of Civil Procedure.

On a Rule 20 summary judgment motion, moving defendants sought dismissal of claims as statute-barred under ss. 4 and 5 of the Limitations Act, 2002.

The court heard affidavit and oral evidence on discoverability and due diligence, and found the responding parties knew by 2005-2006 of the impugned transfer and related litigation but chose not to investigate potential claims against additional actors.

Applying the objective branch of discoverability and diligence principles, the court held that a reasonable person in their circumstances ought to have known the material facts in 2006.

The court concluded there was no genuine issue requiring trial on the limitations defence and dismissed the action against the moving defendants.