Michael O’Brien

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 plaintiff commenced a proposed class action alleging wrongful collection of personal information through the Tim Hortons and Burger King mobile applications.

Following a national settlement agreement approved by the Superior Court of Quebec, the parties consented to the dismissal of this Ontario action.

The court dismissed the proposed class action without costs.

Costs decision following the dismissal of the plaintiff's motion for an interlocutory injunction and the dismissal of the defendant XTM's cross-motion for summary judgment.

The court declined to award substantial indemnity costs to either party.

The court awarded net partial indemnity costs of $25,000 to XTM.

The court also awarded partial indemnity costs of $15,000 to amicus curiae representing the self-represented defendants, and $3,982.69 for disbursements incurred directly by the self-represented defendants.

The parties in a proposed class action reached a consortium agreement to seek certification of a national class in British Columbia.

A dispute arose over whether the Ontario action should be stayed permanently or conditionally.

The parties ultimately agreed to a consent order staying the action subject to further order of the court, but could not agree on costs.

The court found that both parties had credible arguments for being the successful party, as their positions were almost identical, and ordered each party to bear their own costs.

The plaintiff brought a motion for a mandatory interlocutory injunction against its former Chief Technology Officer and a competitor, seeking the return or destruction of alleged confidential information.

The competitor brought a cross-motion for summary judgment to dismiss the action against it.

The court dismissed the injunction motion, finding the plaintiff failed to establish irreparable harm or that the balance of convenience favoured granting the order, largely due to a 22-month delay in pursuing the motion.

The court also dismissed the summary judgment motion, finding genuine issues requiring a trial regarding the competitor's knowing involvement and the causation of the plaintiff's loss of a major client.

The plaintiff brought a motion for leave to proceed with a secondary market securities class action under the Securities Act and a motion for certification under the Class Proceedings Act.

The claim alleged that the defendant cannabis company and its directors made thousands of misrepresentations regarding revenue recognition, which were later corrected in restated financial statements.

The court dismissed the motion for leave, finding no reasonable possibility that the plaintiff could prove the alleged misrepresentations had a material impact on the share price.

Consequently, the court also dismissed the certification motion, as the pleadings failed to disclose a viable cause of action for the remaining common law and oppression claims.

Following a successful motion by the defendants to stay the proceedings in favour of arbitration, the defendants sought costs on a substantial indemnity scale, arguing that a letter demanding the plaintiff discontinue the action constituted a Rule 49 offer.

The court held that the letter did not contain a genuine compromise and therefore did not attract substantial indemnity costs.

The court awarded the defendants partial indemnity costs in the amount of $43,805.72, finding the amount reasonable for a stay motion involving considerable legal research.

The defendants moved to stay the plaintiff's action for breach of a franchise development agreement, relying on an arbitration clause specifying Chicago as the venue.

The plaintiff opposed the stay, arguing that the defendants had no real presence in Chicago and that the forum was inconvenient and artificial.

The court granted the stay, applying the competence-competence principle and holding that in the era of virtual hearings, traditional forum non conveniens arguments are largely obsolete, as all locations are equally accessible online.

Following an unsuccessful defence motion for summary judgment on a discoverability issue in a motor vehicle accident action, the court addressed the appropriate quantum of costs payable to the plaintiff.

The plaintiff sought over $50,000 in partial indemnity costs.

The court found the requested fees excessive, noting duplication of work among multiple counsel and disproportionate time claimed by senior counsel who did not draft the materials.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized fairness, reasonableness, and the expectations of the parties.

Costs were reduced and fixed at a lump sum of $29,000 inclusive of fees, disbursements, and HST.

In a personal injury action arising from a motor vehicle accident, the defendant brought a motion compelling the plaintiff to attend a second defence medical examination, this time with a physiatrist.

The plaintiff had already attended a psychiatric defence medical examination and argued that only one examination should be permitted.

The court held that the plaintiff was claiming both psychological and physical injuries, which are distinct areas of medical inquiry, and fairness required that the defence obtain an additional expert assessment addressing the physical injuries.

The court found minimal prejudice to the plaintiff given the absence of a scheduled trial date and the importance of the assessment to the defence case.

The motion was granted, but no costs were awarded due to ambiguity created by earlier correspondence between counsel.