Michael P. McGraw

The plaintiff in a solicitor's negligence action brought a motion for leave to amend her statement of claim to add allegations of litigation misconduct against the defendants' counsel.

The proposed amendments related to the removal of labels from boxes containing the plaintiff's files before they were delivered.

The court dismissed the motion, finding that the proposed amendments did not arise from the same factual matrix as the original claim and did not disclose a legally tenable cause of action for litigation misconduct.

The court also noted the motion appeared to be brought primarily for tactical reasons to bolster a separate motion to remove the defendants' counsel.

The defendant brought two motions in an action arising from a fire that damaged equipment at a mining project.

The first motion sought to compel the third party insurance broker to answer refusals from examinations for discovery.

The second motion sought to compel a non-party independent adjuster to produce its complete file and attend an examination.

The court ordered the insurance broker to answer most of the refusals, finding them relevant to the allegations regarding the review of insurance coverages.

Regarding the non-party production, the court found that the adjuster's file contained relevant documents but ordered a staged approach to production to balance the interests of the non-party.

The motion to examine the adjuster was adjourned pending the resolution of documentary production.

The plaintiffs brought a motion to consolidate four separate actions arising from a franchise dispute, including claims against the franchisor, accountants, and lawyers.

All parties consented except for one defendant accountant.

The court applied Rule 6.01 and found that the actions shared common questions of fact and arose from the same series of transactions, specifically the plaintiffs' reliance on allegedly inaccurate financial statements.

The court granted the motion to consolidate the actions and ordered that a related third-party claim be heard at the same time or immediately after the consolidated action.

The plaintiffs commenced an action in 2015 but took no steps for over five years while the principal of the plaintiff corporations faced criminal charges.

The plaintiffs brought a motion for a status hearing to extend the time to set the action down for trial, but later abandoned it and served a trial record.

The defendants brought cross-motions to proceed with the status hearing.

The court found the plaintiffs failed to provide an acceptable explanation for the delay, as they unilaterally held the action in abeyance without communicating with the defendants.

The court also found the plaintiffs failed to rebut the strong presumption of prejudice arising from the delay.

The action was dismissed for delay.

In a commercial lease dispute involving allegations of rent overpayment and underpayment, both the plaintiff tenant and defendant landlord brought motions to compel answers to undertakings and refusals from examinations for discovery.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure, ordering both parties to answer certain questions and produce specific financial and lease-related documents, while dismissing requests that were overbroad or disproportionate.

In two related actions arising from a construction dispute, the Concord Parties moved to stay the Varone Parties' breach of trust claims under the Construction Lien Act upon payment into court of the admitted claim amount.

The Varone Parties brought a cross-motion to withhold disclosure and production of certain documents until a threshold issue regarding the nature of the services agreement was determined.

The court granted the stay, finding that the trust claims would be moot once fully secured by the payment into court, and that a stay would result in material efficiencies without causing injustice.

The court dismissed the discovery motion, concluding that the threshold issue was not clearly severable from the other claims, including fraud and conspiracy, and that the Varone Parties would not suffer serious prejudice from full disclosure.

The Plaintiffs, Rooney Luh and Jae Luh Holdings, Inc., brought a motion to strike the Defendants' (Ralph Di Pietro, Deborah Di Pietro, and Lancaster Custom Cabinets & Closets Inc.) Counterclaim under Rule 25.11 and sought a separate trial.

The Defendants brought a cross-motion for leave to amend their Statement of Defence and Counterclaim, including adding six new parties as Defendants by Counterclaim.

The court dismissed the Plaintiffs' motion to strike and their request for a separate trial, finding that the Defendants' proposed amendments were legally tenable, disclosed a reasonable cause of action, and did not cause non-compensable prejudice or undue delay.

The court granted the Defendants leave to amend their pleadings, emphasizing the interconnectedness of the claims and parties, and imposed a timetable for discoveries.

This decision concerns a motion for costs brought by the defendants following the plaintiff's discontinuance of a defamation action.

The plaintiff had initially filed in Small Claims Court, then transferred the action to Superior Court, increasing the claim tenfold, before discontinuing it prior to discoveries.

The defendants sought substantial indemnity costs, arguing the plaintiff's claim lacked bona fides and was vexatious, especially given an earlier police investigation identified the plaintiff as a suspect in online death threats against the defendants' son.

The court, exercising its discretion under Rule 23.05 and the Courts of Justice Act, found the plaintiff's conduct exceptional and awarded costs on a substantial indemnity scale, concluding the claim was not bona fide and lacked justification.

The court fixed costs at $27,000.

The plaintiff brought a motion for leave to amend her Amended Statement of Claim in a solicitor's negligence action, seeking to add allegations of litigation misconduct by the defendants' counsel.

The proposed amendments related to the handling and delivery of client files.

The court found the motion premature due to its overlap with a "Label Motion" and ongoing judicial case management concerning the same alleged misconduct.

The court adjourned the pleadings motion to a case conference to clarify the status of the related motions and case management, reserving costs.

This endorsement addresses the costs of a previously dismissed motion by the plaintiffs for a Certificate of Pending Litigation (CPL).

The defendant, having successfully opposed the CPL, sought costs on a partial indemnity scale.

The court awarded the defendant $24,000 in costs, finding it fair and reasonable.

The decision emphasized that costs should follow the event and that the plaintiffs' delay in bringing the original motion, which necessitated an urgent and expedited process, contributed to the increased costs.

The court rejected the plaintiffs' argument that the subsequent failure of the third-party sale, which was the basis for the original motion's urgency, should negate the costs award, as this was not known at the time of the motion's disposition.

Talon International Inc. brought a motion to remove Mitchell Wine and MSTW Professional Corporation as lawyers of record for the defendant Byung Sook Min, alleging a conflict of interest.

The conflict arose from Mr. Wine's prior representation of 22 other unit purchasers in 19 actions against Talon, which had settled with confidentiality provisions.

Talon argued Mr. Wine possessed confidential settlement information relevant to the current action.

Applying the MacDonald Estate and Celanese Canada Inc. tests, the court found Mr. Wine's new retainer was sufficiently related to his previous representation, creating a rebuttable presumption of confidential information possession that was not rebutted.

The court concluded there was a real risk of prejudice to Talon that could not be overcome by remedies short of disqualification, balancing the integrity of the justice system against the litigant's choice of counsel.

The motion was granted, and Mr. Wine and his firm were removed as counsel.

The defendant, First Data Canada Ltd. ("FD"), brought a motion for leave to amend its Third Party Claim against Vantiv Integrated Payments entities ("Vantiv").

The proposed amendments included new allegations regarding Vantiv's use of an incorrect merchant ID number and an alleged agency relationship between the plaintiff and Vantiv.

Vantiv opposed, arguing the amendments introduced new, statute-barred causes of action.

The court applied the principles for amending pleadings, emphasizing a generous, factually-oriented approach.

It found that the proposed amendments were additional facts supporting the original negligence claim and part of the same factual matrix, rather than new causes of action, even if some allegations were inconsistent with the original claim.

Leave was granted in part, allowing the amendments related to the merchant ID and agency, but requiring FD to address inconsistent allegations.

The plaintiff, 5004514 Ontario Inc. (formerly Ajax Sales & Service Inc.), brought a motion for leave to correct a misnomer in its Statement of Claim to add Kaizer Husseini Poonawalla as a separate defendant.

The original claim incorrectly listed Kaizer as an alias of Husseini Poonawalla.

The court applied the "litigating finger" test for misnomer, finding that an objective reading of the original claim would indicate Kaizer was an intended defendant.

The court also addressed the defendants' argument regarding the expiry of the limitation period, concluding that limitation period defenses do not apply to motions to correct a misnomer.

Even if misnomer did not apply, the court found a triable issue of fact or credibility regarding discoverability.

The motion was granted, allowing the plaintiff to amend its claim.

The plaintiff in a Simplified Procedure action brought a motion to extend the time for examination for discovery of the defendant's representative by 60 minutes, later reduced to 30 minutes.

The request stemmed from technical difficulties in accessing the full surveillance footage of the incident prior to and during the initial discovery, despite an understanding between counsel that further questioning would occur once the footage was viewed.

The court granted the extension, finding it had jurisdiction under Rules 3.02(1) and 2.03 of the Rules of Civil Procedure.

The court determined that extending the discovery was just and reasonable given the circumstances, the importance of the surveillance to the litigation, and the reliance of plaintiff's counsel on the agreement with the defendant's counsel.

The plaintiff sought costs of $12,000 on a partial indemnity scale following substantially successful motions to amend her Statement of Claim and for document production.

The defendant argued for no costs, citing personal circumstances during the pandemic and arguing costs should be in the cause.

The court found the defendant's delay in consenting to the amendments was unnecessary and added costs.

The court awarded the plaintiff costs fixed at $7,000.

The defendants requested that the plaintiff's action be dismissed or stayed under Rule 2.1.01 as frivolous, vexatious, or an abuse of process.

The self-represented plaintiff, a former student suspended from Mohawk College, had commenced three separate actions arising from the same incidents, claiming $100,000,000 in damages in this third action.

The court found the claim against the individual defendants and 'Security and Emergency Management' to be frivolous and vexatious, as no specific allegations were pleaded against them, and dismissed those claims.

The action against Mohawk College was stayed, with the plaintiff granted a limited opportunity to amend the claim and lift the stay upon satisfying certain conditions, including paying a prior costs order.

The defendant brought a third motion to dismiss the action for delay, which was dismissed on terms with an expedited timetable.

The plaintiff sought costs of the motion on a partial indemnity scale, while the defendant argued no costs should be awarded.

The court found that although the defendant was unsuccessful, it was not unreasonable to bring the motion given the 15-year history of the action and previous judicial criticism of the plaintiff's delay.

The court ordered the parties to bear their own costs.

The defendant, Aviva Insurance Company of Canada, brought a motion to stay the action on the basis of forum non conveniens, arguing that Manitoba was the more appropriate forum.

The plaintiff, Altea Active Club Inc., opposed the motion.

The court found that while Ontario had jurisdiction simpliciter, Manitoba was clearly the more appropriate forum given the location of the plaintiff's business operations, the negotiation and administration of the insurance policy in Manitoba, the origin of the factual matters (Manitoba's COVID-19 shutdown order), and the application of Manitoba law to the insurance contract.

The motion to stay the action was granted.

Following a motion where the defendants were largely unsuccessful in seeking further particulars and striking paragraphs of the plaintiff's statement of claim, the plaintiff sought costs of $11,923.04.

The court found the plaintiff was substantially successful and the defendants' motion was largely unnecessary.

The court awarded the plaintiff costs fixed at $8,500 on a partial indemnity scale.

The plaintiff brought a motion to vary a 2018 consent order that dismissed its motion to set aside a registrar's dismissal order.

The plaintiff argued that its former counsel made an inadvertent mistake by agreeing to dismiss the motion against all defendants, rather than just the MEC defendants, and sought to continue the action against the Pace defendants.

The court dismissed the motion, finding no common mistake, fraud, or misrepresentation to justify varying the consent order, which accurately reflected the fairly negotiated minutes of settlement.

The court emphasized the relative sanctity of consent orders and the strong presumption in favour of the finality of settlements.