Michael P. McGraw

The defendants sought costs following their successful motion to compel the plaintiff to attend orthopaedic and psychiatric assessments.

The plaintiff opposed the costs, arguing the defendants' counsel delayed serving motion materials.

The court found no reason to depart from the general rule that the successful party is entitled to costs, noting the plaintiff opposed any examination, even virtual ones.

The court fixed costs payable to the defendants at $7,000 on a partial indemnity scale.

The plaintiff brought a motion to compel answers to refusals arising from cross-examinations on affidavits filed by the defendant in support of her pending anti-SLAPP motion.

The underlying action involves claims of defamation and misfeasance in public office against a municipal councillor.

The court applied the test for relevance on a motion, balancing the scope of the anti-SLAPP motion with the principle of proportionality.

The court ordered the defendant to answer certain narrowed questions regarding her communications with third parties and the police, but dismissed overbroad requests and upheld solicitor-client privilege regarding a non-party lawyer's communications.

The plaintiff brought a motion to set aside a second order of the Registrar dismissing the action for delay.

The delay was primarily caused by the inadvertence of the plaintiff's former counsel and his staff in failing to schedule discoveries and extend the set down date.

Applying the four-part Reid test, the court found that the plaintiff provided a reasonable explanation for the delay, demonstrated an intention to proceed, moved promptly to set aside the order, and that the defendants would suffer no actual prejudice.

The motion was granted and the dismissal order was set aside.

The self-represented plaintiff brought a motion to compel the defendants to deliver a further and better Affidavit of Documents in a breach of contract action.

Success on the motion was divided, with the defendants ordered to make further inquiries and produce certain documents, while other requests were deferred to examinations for discovery.

The plaintiff sought costs of $4,039.56 for disbursements, while the defendants argued costs should be reserved.

The court concluded that given the divided success and early stage of the proceedings, costs of the motion should be in the cause and reserved to the trial judge.

The self-represented plaintiff brought a motion for leave to amend her Statement of Claim to add the Crown and various provincial ministries as defendants, and to make related amendments alleging misfeasance, conspiracy, and Charter breaches arising from the mistaken transfer of her vehicle's ownership and detachment of her license plate.

The court dismissed the motion, finding that the proposed amended claim lacked the heightened particularity required for serious allegations like conspiracy and misfeasance, and improperly named individual ministries rather than the Crown.

The dismissal was without prejudice to the plaintiff's right to deliver a re-drafted Fresh As Amended Statement of Claim within 30 days.

The defendants brought a motion under section 47 of the Construction Lien Act to discharge the plaintiff's claim for lien, arguing it was registered out of time.

The defendants claimed the plaintiff abandoned the contract more than 45 days before registering the lien, relying on photographs showing the plaintiff's equipment had been removed.

The court dismissed the motion, finding that the date of abandonment and completion were triable issues requiring findings of fact and credibility that could not be resolved on a documentary record.

The plaintiff's action was dismissed by an order of the Registrar.

The defendants brought a motion in writing to fix costs, seeking $42,740.56 on a substantial indemnity scale based on an unaccepted formal offer to settle.

Despite multiple extensions, the self-represented plaintiff failed to deliver responding materials.

The court found the defendants were completely successful and the offer met the requirements of Rule 49.10(1).

Costs were fixed at $36,000, reflecting partial indemnity up to the date of the offer and substantial indemnity thereafter.

The plaintiff sought costs of $7,500 on a partial indemnity scale following a motion by the defendants for leave to amend their defence and a cross-motion by the plaintiff to strike paragraphs.

The defendants argued that success was divided and parties should bear their own costs.

The court found the plaintiff was substantially successful, as every disputed paragraph was struck in whole or in part, necessitating substantial amendments by the defendants.

The court awarded the plaintiff costs fixed at $6,000 on a partial indemnity scale.

Following a successful motion by the plaintiff to extend the set down date for trial, both parties sought costs.

The court awarded the plaintiff $8,000 in costs on a partial indemnity scale, noting that the defendant's conduct, including failing to disclose the transfer of a property and misleading the plaintiff about available assets, materially contributed to the delay.

The court declined to award costs for the defendant's abandoned dismissal motion.

Following the dismissal of the plaintiff's motions for a Certificate of Pending Litigation and for security pending trial, the defendants sought their costs.

The court rejected the plaintiff's argument to defer costs to the trial judge, finding no reason to depart from the general rule that the successful party is entitled to costs.

The court awarded the defendants costs on a partial indemnity scale, fixed at $18,000 for the CPL motion and $11,000 for the security motion.

The defendants brought a motion seeking security for costs from the corporate plaintiffs in an action arising from a real estate joint venture.

The plaintiffs, who had no assets in Ontario, argued they were impecunious and that their claims had merit.

The court found that the plaintiffs failed to meet the high evidentiary burden to prove impecuniosity, as they did not provide evidence of efforts to raise funds from their principals or investors.

Balancing the factors, the court ordered the plaintiffs to post $70,000 in security for costs on a partial indemnity scale up to the completion of discoveries.

In a complex construction delay action regarding the Toronto York Spadina Subway Extension, the plaintiff contractor and defendant transit commission brought cross-motions regarding refusals and undertakings from examinations for discovery.

The court applied the principle of proportionality under Rule 29.2.03 to resolve the remaining disputes.

The court ordered the plaintiff to produce a breakdown of estimated project costs and a sample of 75 Requests for Information, but denied requests for the plaintiff's profit and loss reports and the internal correspondence of its scheduling consultant.

The defendant was ordered to produce the time periods for its liquidated damages claims against contractors at other stations.

The defendant and statutory third party brought a motion to compel the plaintiffs to attend in-person defence medical examinations, including physiatry assessments for both plaintiffs and a psychiatric assessment for one plaintiff, after the action had been set down for trial.

The court granted leave under Rule 48.04(1), finding that the plaintiffs' late delivery of numerous expert reports and medical records demonstrating a significant and unexpected deterioration in their conditions constituted a substantial change in circumstances.

The court ordered the plaintiffs to attend the requested examinations to ensure trial fairness and allow the defendants an adequate opportunity to meet the plaintiffs' case.

The respondents in a condominium application brought a motion to compel the applicant to answer refusals from the cross-examination of four deponents and to compel the deponents to re-attend.

The underlying application involved allegations that the respondents engaged in a campaign of harassment against condominium management and directors.

The court reviewed the disputed refusals, ordering the applicant to provide written clarifications for a small number of questions where the deponents' answers were incomplete.

The balance of the motion was dismissed, and the request for re-attendance was denied as disproportionate.

The plaintiff sought costs of $14,352.16 on a partial indemnity scale following a motion to compel document production, which was largely resolved on consent or abandoned.

The defendants argued for costs of $5,278.23.

The Master found the plaintiff's claimed amount disproportionate given the limited success and abandoned relief, fixing costs payable to the plaintiff at $2,800.

Following a motion regarding the examination for discovery of the defendant's representative, the parties were unable to agree on costs.

The plaintiff sought substantial indemnity costs, while the defendant argued the parties should bear their own costs.

The court found that while both parties shared responsibility for the conduct of the motion, the defendant's refusal to re-produce the deponent necessitated the motion.

The court awarded the plaintiff costs fixed at $4,000 on a partial indemnity scale.

The defendant moving party brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against a 700-acre property.

The property was sold to the moving party under a power of sale while concurrently being sold by the owner to the plaintiffs.

The court found that there were triable issues regarding the validity of the power of sale and whether the moving party was a bona fide purchaser for value without notice.

The court concluded that the equities favoured maintaining the CPL to prevent the property from being encumbered or sold before trial, and found no material non-disclosure by the plaintiffs when they initially obtained the CPL ex parte.

The motion to discharge the CPL was dismissed.

The defendants in a solicitor negligence action brought a motion to compel the plaintiff to attend orthopaedic and psychiatric defence medical examinations.

The action had already been set down for trial, requiring the defendants to seek leave under Rule 48.04.

The court applied the flexible approach to granting leave, noting that the trial date was not in jeopardy and that trial fairness required the defendants to have an opportunity to respond to the plaintiff's expert reports.

Despite the plaintiff's concerns regarding the COVID-19 pandemic and travel, the court ordered a virtual psychiatric assessment and an in-person orthopaedic assessment, finding that safety protocols at the hospital would adequately address the risks.

The defendant brought a motion to dismiss the plaintiff's action for delay and failure to comply with court orders.

The motion was resolved on consent, with the parties agreeing to a timetable and leaving costs to be determined in writing.

The court found that the defendant was entitled to costs because the plaintiff's failure to respond in a timely manner caused the defendant to incur unnecessary expenses.

The court awarded the defendant costs fixed at $4,500 on a partial indemnity scale.

The defendant brought a motion for additional security for costs, which was dismissed.

The plaintiff sought costs of the motion on a substantial indemnity scale, while the defendant argued for partial indemnity costs payable only if the plaintiff was successful at trial.

The court found no reason to depart from the general rule that the successful party is entitled to costs.

The court declined to award substantial indemnity costs, finding the defendant's conduct was not abusive or reprehensible, but fixed costs at $9,000 payable within 30 days due to the motion's lack of merit and timing.