Michael P. McGraw

The plaintiffs brought two motions in a medical malpractice action: one to compel defendant physicians Dr. Fadie Amin and Dr. Anton Helman to answer refusals from discovery, and another for leave to amend their statement of claim to include additional differential diagnoses.

The court analyzed the principles governing hypothetical questions in discovery and the test for amending pleadings.

The refusals motion was largely granted against Dr. Helman, with several questions ordered to be answered or clarified, while largely dismissed against Dr. Amin.

The motion for leave to amend the statement of claim was granted, allowing the plaintiffs to specify additional serious conditions the defendants allegedly failed to consider.

This costs endorsement addresses the costs arising from a motion by the City of Mississauga to amend its Statement of Defence and cross-motions by the plaintiff, Amanda Martin.

The City was entirely successful on its motion and substantially successful against the plaintiff's cross-motions.

The court considered the principles governing costs awards, including the five purposes of costs rules and the factors under Rule 57.01(1) of the Rules of Civil Procedure.

Despite the plaintiff's arguments for divided success and an offer to settle, the court found the City largely successful and awarded partial indemnity costs.

The court reduced the City's claimed costs, fixing them at $9,000, payable by the plaintiff within 90 days, noting the plaintiff's conduct contributed to the length and costs of the proceedings.

The defendants brought a motion to discharge the plaintiff's construction lien claim and certificate of action, arguing it was not registered in a timely manner and had expired.

The plaintiff, an architectural firm, contended its last supply of services was an attendance at the property to assess a potential roof-raising project, which would make the lien timely.

The court found that this attendance did not constitute a "supply of services to an improvement" under the Construction Lien Act, as it was unsolicited, did not enhance the property's value, and was outside the scope of the original contracts.

Consequently, the lien was found to have expired in early 2009, making its registration in March 2012 untimely.

The defendants' motion to discharge the lien was granted, and the security posted by a third party was ordered to be returned.

The plaintiff's underlying contractual claim was not dismissed.

The plaintiff brought a motion under Rule 60.12 to strike the defendant's Statement of Defence in a class action, alleging failure to produce documents.

Mid-motion, the plaintiff changed the requested relief to an order for specific further productions and examinations.

The Master found that the plaintiff's mid-motion change in position and late-filed materials prevented the defendant from properly responding.

The Master also concluded that granting the proposed order risked jeopardizing a fixed 17-week trial date, and a Master lacks authority under Rule 37.02(2)(b) to make orders that would effectively adjourn a judge's fixed trial date.

Consequently, the motion was adjourned sine die, and the parties were directed to attend before Justice Firestone for directions regarding the trial date and the relief sought.

This endorsement addresses eight related motions in five consolidated actions stemming from uncompleted real estate transactions.

The court case-managed the proceedings, resolving most motions by agreement or direction.

The primary substantive dispute adjudicated concerned the quantum of security for costs to be paid by the plaintiffs, Gui Zhao and Juanli Liu, to the defendant Qing Hui, which the court set at $27,000, a figure between the parties' proposals.

Other motions, including those for discovery and to strike a cross-claim, were adjourned sine die with directions for future resolution or agreement.

The plaintiff, a self-represented litigant, commenced three separate actions alleging various misconducts over 20 years against numerous defendants, including government entities, police services, healthcare facilities, and media corporations.

The defendants brought a motion under Rule 2.1.01 to dismiss or stay the actions as frivolous, vexatious, or an abuse of process, citing rambling pleadings, grandiose claims for damages (exceeding $800 million), and potential limitation period issues.

The court found the actions to be frivolous, vexatious, and an abuse of process but, considering the plaintiff's self-represented status and lack of prior opportunity to amend, decided to continue the stay rather than dismiss the actions outright.

The plaintiff was granted a limited opportunity to seek leave to amend his Statements of Claim by a specified date, failing which the actions could be dismissed.

The plaintiff, Mohawk Ford Sales (1996) Limited (MF), brought a motion for leave to amend its Statement of Claim to plead new causes of action and related amendments concerning alleged misconduct by the defendant, Marc Jewiss.

The defendants argued the proposed amendments were statute-barred by the Limitations Act, asserting MF had discovered the claims earlier than alleged.

The court found that MF rebutted the presumption of actual knowledge at the time of the alleged conduct and provided a reasonable explanation for the delay in discovering the additional claims through internal reviews.

The court granted leave to amend the Statement of Claim, allowing the defendants to plead additional limitations defences.

This endorsement addresses three complex motions brought by the plaintiff Apotex Inc. and the defendants Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH, Sanofi-Aventis Canada Inc. (collectively "Sanofi"), and Schering Corporation ("Schering"), seeking to compel answers to undertakings and refusals in a long-running pharmaceutical patent litigation.

The motions involved approximately 480 questions, later narrowed to 101.

The Master applied principles of relevance and proportionality under the Rules of Civil Procedure, emphasizing the balance between extensive discovery requests and the significant damages claimed.

Many broad requests for documents and information were denied as disproportionate or overbroad, while narrower, more targeted requests were granted.

The court also addressed issues of solicitor-client privilege and the obligation to state legal positions.

The Plaintiff brought three motions: for costs related to previous motions against TD Bank, to compel outstanding document productions from the Defendants, and for leave to amend her Statement of Claim.

The court awarded the Plaintiff partial indemnity costs of $3,000 against the Defendants for their conduct in unnecessarily prolonging the TD Bank motions, but reserved the issue of full indemnity costs based on alleged fraud to the trial judge.

The court also issued specific orders compelling the Defendants to produce various financial documents within 60 days.

The Plaintiff was granted leave to amend her Statement of Claim to increase claims for aggravated and punitive damages, with other proposed amendments adjourned.

In a wrongful dismissal action, the City of Mississauga sought leave to amend its Statement of Defence to withdraw an allegation of just cause termination.

The Plaintiff opposed, arguing this constituted a withdrawal of admissions under Rule 51.05, and brought a cross-motion to compel production of an investigation report and permit discovery on the cause allegation.

The court granted the City's motion, finding that withdrawing a just cause allegation was an amendment under Rule 26.01, not a withdrawal of an admission.

The Plaintiff's cross-motion to compel production and discovery was largely dismissed as premature, but the City was ordered to provide its position on the report's production within 7 days and serve its Affidavit of Documents within 45 days.

The plaintiff, New York Stock Exchange, LLC (NYSE), brought a motion to compel discovery answers and production, while the defendants moved to strike NYSE's notice of examination for a corporate representative and substitute another.

The court dismissed the defendants' motion, affirming NYSE's prima facie right to choose its deponent, Olga Sementchoukova, given her knowledge of the financial transactions at issue.

The court largely granted NYSE's motion to compel, finding that the defendants had waived solicitor-client privilege by pleading reliance on legal advice from Stikeman Elliot LLP to rebut allegations of fraudulent conveyance and bad faith.

The court ordered production of related legal advice documents and answers to several financial discovery questions, while dismissing others.

The defendants sought security for costs from the non-resident plaintiffs, Typhoon Offshore B.V. and Typhoon Capital B.V., arguing their claim was hybrid and not solely an oppression remedy.

The court found the plaintiffs' claim to be primarily related to oppression remedies (70%) but also included other relief such as constructive trust and claims under the Fraudulent Conveyances Act and Assignments and Preferences Act.

Despite the hybrid nature of the claim and the plaintiffs being non-resident with insufficient Ontario assets, the court exercised its broad discretion.

It found that the plaintiffs had a good chance of success, particularly given existing unpaid judgments against one of the defendants, Jacob Securities Inc., and the alleged oppressive conduct.

The motion for security for costs was dismissed, as it was deemed unjust to order security against plaintiffs seeking to enforce existing judgments.

The defendants brought a motion for leave to conduct a further examination for discovery of the plaintiff, Abdullah Abdulwasi, after the action had been set down for trial.

They argued that the plaintiff's recent surgery indicated a substantial deterioration in his health, necessitating a second in-person discovery to assess his injuries and damage claim.

The plaintiff opposed, asserting his condition was consistent with prior circumstances and offered written interrogatories and a defence medical examination.

The court denied the defendants' motion, finding they failed to demonstrate a "substantial or unexpected change in circumstances" or that the plaintiff's condition had "deteriorated substantially" as required by the Rules of Civil Procedure.

The court emphasized proportionality and efficiency, concluding that written questions and a defence medical examination would better serve the purpose of discovery than a second in-person examination, especially since the plaintiff was not in a position to answer "why" his condition allegedly worsened.

The Plaintiffs brought a motion to compel the Defendants to answer undertakings, questions taken under advisement, and refusals from examinations for discovery, and to serve a further affidavit of documents and re-attend discovery.

The Master, applying principles of proportionality and relevance, granted most of the Plaintiffs' requests, ordering the Defendants to provide specific information and documents related to warranty claims, alleged trademark/copyright infringement damages, corporate affiliates, sales data, and customer information.

Some requests were dismissed as disproportionate or already addressed.

The Master also ordered the Defendants to provide outstanding Lawyer's Certificates and re-attend discovery.

The plaintiffs sought leave to amend their Statement of Claim in a dental malpractice action, proposing new particulars of alleged negligence related to the defendant's surgical procedures and post-operative care.

The defendant argued these amendments constituted new causes of action outside the limitation period.

Applying a factually-oriented approach to "cause of action" under Rule 26.01, the court found that most proposed amendments arose from the same factual matrix as the original claim and did not constitute new causes of action.

Leave was granted for these amendments, as no non-compensable prejudice was found.

However, an amendment that pleaded evidence, contrary to Rule 25.06(1), was denied.

The plaintiff moved under Rule 37.14(8) to set aside a Registrar's Order dismissing her action as abandoned, which arose from a 2009 pedestrian-motor vehicle accident.

The action was dismissed in 2012 due to former counsel's inadvertence and erroneous beliefs regarding case management and the Ontario Motor Vehicle Accident Claims Fund.

The plaintiff's new counsel discovered the dismissal in 2015, and the motion was brought in 2016.

The defendant opposed, citing personal hardship and the passage of time.

The court applied a contextual approach to the four Reid factors, finding the delay unintentional and the dismissal inadvertent, and that the defendant would not suffer actual prejudice.

The motion was granted, setting aside the dismissal and allowing the action to proceed to trial.

The defendants/plaintiffs by counterclaim brought a motion to compel the plaintiffs/defendants by counterclaim to answer undertakings, questions taken under advisement, and refusals from a discovery examination.

The court applied Rules 31.06 and 29.2.03, considering relevance, scope of discovery, and proportionality.

The motion was largely dismissed, with the court ordering production only for Kersdale Investments Inc.'s financial documents and best efforts to obtain documents from a non-party for the Connaught Ave. project.

The plaintiff, Kwik Snaks Ltd., moved to set aside a Registrar's Order dismissing its action for delay, pursuant to Rule 37.14(8) and 48.14(1) of the Rules of Civil Procedure.

The action, a collection matter for unpaid invoices, had a protracted procedural history marked by extensive documentary production disputes and multiple motions.

The plaintiff's counsel attributed the delay to inadvertence and a dispute over photocopying costs, while the defendants argued the delay demonstrated an intent not to pursue the action and claimed prejudice due to lack of discovery and fading witness memories.

Applying the contextual approach to the Reid factors, the court found the plaintiff always intended to proceed, the delay was largely inadvertent, and the defendants failed to demonstrate actual prejudice in this document-driven case.

The motion was granted, the dismissal order set aside, and the action restored to the trial list with a new timetable for discovery and trial setting.

The court also ordered the plaintiff to release photocopied documents without charge, noting the discovery plan did not provide for reimbursement.

The plaintiffs brought a motion to compel the defendants to provide further and better responses to a request to inspect documents, specifically concerning particulars of fraud and misrepresentation allegations in their counterclaim.

The court dismissed the motion, finding that the issue of further productions could be more appropriately addressed during oral discoveries.

The Master emphasized that granting the requested relief would further delay the litigation, contrary to the principle of proportionality, and that the plaintiffs had other avenues, such as oral discovery or motions to strike/summary judgment, to advance the litigation.

The plaintiff brought a motion to compel the defendant to conduct additional email searches related to the selection of engineers for a project, following an alleged breach of contract.

The plaintiff claimed he was not engaged for the project despite an exclusivity agreement.

The defendant argued that the selection was made by Ontario Power Generation (OPG) and that extensive, targeted searches for the plaintiff's name had already been conducted without yielding relevant emails.

The court dismissed the plaintiff's motion, finding the requested searches to be of questionable relevance, speculative, and inconsistent with the principle of proportionality under Rule 29.2.03 of the Rules of Civil Procedure, given the comprehensive searches already performed by the defendant and the production of definitive documents.