Michael P. McGraw

The plaintiff brought a motion to amend her Statement of Claim to add a winter maintenance contractor as a defendant to her slip and fall action against the municipality.

The motion was brought after the expiry of the presumptive two-year limitation period.

The court found that the presence of snow and ice on the municipal sidewalk was a trigger that should have prompted the plaintiff to inquire about a maintenance contractor.

Because the plaintiff failed to make any such inquiries, she did not exercise reasonable diligence, and the claim against the contractor was statute-barred.

The motion was dismissed.

The plaintiff brought a motion to validate service of her Statement of Claim after 19 months of unsuccessful attempts to serve the defendants.

The motion was resolved when the defendants' counsel accepted service prior to the third return date.

The parties could not agree on costs.

The court found that the defendants' conduct made the motion necessary and unnecessarily lengthened the proceeding.

The court awarded the plaintiff costs fixed at $2,500.

The plaintiffs were successful on a motion for leave to amend their Statement of Claim to add their automobile insurer as a defendant.

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

The court found no reason to depart from the general rule that costs follow the event, noting the insurer's opposition unnecessarily added to the costs of the proceedings.

The court awarded the plaintiffs costs fixed at $6,500, reducing the requested amount to reflect divided success on some issues and procedural delays caused by the plaintiffs.

The plaintiff sought costs of $13,983.34 on a partial indemnity scale following a motion to compel answers to undertakings and refusals, and a dismissed motion to examine a second representative.

The defendant sought costs of $26,144.52.

The court found the refusals motion was necessary to progress the litigation, but noted the plaintiff's requests were overbroad.

Balancing the divided success and the conduct of both parties, the court awarded the plaintiff costs fixed at $3,500.

This is a costs endorsement following motions to compel discovery answers.

The Plaintiff, Vanalt Electrical Construction, Inc. (VEC), sought costs for its motion, while the Defendants, Ozz Electric Inc. et al., sought costs or reservation.

The court awarded VEC $5,000 in partial indemnity costs, finding that the Defendants' conduct unnecessarily prolonged the discovery process and increased litigation expenses.

Costs related to 33 adjourned questions were reserved for future determination.

This endorsement addresses the costs of a motion brought by Metro Ontario Real Estate Limited ("Metro") to strike paragraphs from Hillmond Investments Ltd.'s ("HIL") Reply and Defence to Counterclaim.

The motion was settled on consent, with the issue of costs deferred.

Metro sought $10,944.63 on a partial indemnity scale, while HIL argued for no costs.

The Master found that HIL's refusal to engage in discussions regarding amendments until the day before the motion necessitated the motion and was the primary factor contributing to the costs incurred.

Considering the proportionality and the conduct of the parties, the Master awarded Metro fixed costs of $4,000.

This endorsement addresses the costs of a motion for security for costs, which was resolved on consent.

The Defendants, Mehran Amini and Hanif Joshaghani, sought $12,471.52 on a substantial indemnity basis, while the Plaintiff, 5001398 Ontario Corp., proposed $2,500.

The court found that exceptional circumstances warranted a costs award despite the consent resolution, as deferring costs facilitated settlement.

While acknowledging the Plaintiff's delay in agreeing to post security contributed to the litigation costs, the court declined to award substantial indemnity costs, finding the conduct did not meet the threshold for reprehensible behaviour.

The court also considered the Defendants' contribution to delay and the proportionality of counsel's docketed hours.

Ultimately, costs were fixed at $4,500 on a partial indemnity scale, payable by the Plaintiff to the Defendants.

The plaintiff moved to set aside a Registrar's order dismissing her action for delay.

The court considered the four factors from Reid v. Dow Corning Corp., finding that the plaintiff provided a satisfactory explanation for delay, largely due to her former counsel's misconduct and illness, and that the failure to set the action down was inadvertent.

The motion was brought promptly, and the defendant failed to demonstrate actual prejudice.

Emphasizing the principle that a client should not be irrevocably jeopardized by counsel's neglect, the court granted the motion to set aside the dismissal order, allowing the action to proceed to a determination on its merits.

Walsh Construction Company Canada (WCC) brought a motion to compel the Toronto Transit Commission (TTC) to produce approximately 1,600 documents over which TTC claimed litigation privilege.

The court applied the "dominant purpose" test for litigation privilege, conducting a contextual analysis of when litigation was reasonably contemplated and whether the documents were created primarily for litigation or for other purposes such as contractual claims review, project completion, or budget management.

The court found that while litigation was anticipated, many documents served multiple purposes, and TTC failed to establish dominant litigation purpose for a significant portion of the disputed documents.

The court ordered the production of most documents, with specific exceptions for those genuinely created for the dominant purpose of litigation or solicitor-client privilege, and provided directions for redactions.

The plaintiff brought a motion for a status hearing to extend the deadline to set the action down for trial.

Shortly after the motion was filed, the Registrar mistakenly issued an Order Dismissing Action for Delay.

The court set aside the dismissal order because the motion was brought before the five-year deadline.

Applying the test for extending the trial deadline, the court found the plaintiff provided an acceptable explanation for the delay, citing the principal's mistaken belief that the action was settled alongside related actions, and the inadvertence of counsel.

The court also found the defendant would suffer no non-compensable prejudice, as documentary evidence was preserved and key witnesses were available.

The motion was granted and a timetable was set.

The plaintiffs brought a motion for a status hearing under Rule 48.14(5) to prevent their action from being dismissed for delay.

The motion was opposed by the Wong Defendants.

The court found an acceptable explanation for the delay concerning claims related to OM Policies, citing the plaintiffs' engagement in preliminary motions and settlement discussions with OM Financial Inc. However, the court found no acceptable explanation for the delay regarding claims related to PPI Policies, where no steps were taken for over 4.5 years and the Wong Defendants were the sole remaining defendants for those claims.

Consequently, the court ordered that the action proceed with respect to the OM Policies but dismissed the claims related to the PPI Policies, establishing a new timetable for the remaining litigation.

The applicant, a beneficiary of a trust, brought a motion to compel the respondent trustee to produce 65 documents over which the trustee claimed solicitor-client and/or litigation privilege.

The court found that a trustee generally cannot claim solicitor-client privilege against a beneficiary for documents related to trust administration, unless the parties are in an adversarial relationship on a separate and distinct matter.

Litigation privilege was not established as the dominant purpose for creating the documents was not litigation.

The court ordered the production of most documents, with redactions for content unrelated to trust administration where an adversarial relationship existed.

The plaintiffs sought leave to amend their Statement of Claim to add their own automobile insurer, TD Insurance, as a defendant under the OPCF 44R Family Protection Endorsement, following an accident with an uninsured motorist.

The motion considered the application of the Limitations Act, 2002, to claims for indemnification against an insurer, specifically when the limitation period begins and if discoverability and due diligence apply.

The court granted leave to amend, finding triable issues regarding discoverability and due diligence, and that no non-compensable prejudice would result to TD Insurance, which had been involved in the plaintiffs' accident benefits claims since 2014.

RBC General Insurance Company ("RBC") brought a motion to set aside or stay two Writs of Seizure and Sale, totaling $17,387.70, obtained by Kuhansea Balasubramaniam (the "Insured").

The Writs arose from an Arbitration Order of the Financial Services Commission of Ontario ("FSCO") for income replacement benefits.

RBC argued that the amounts in the Writs were incorrect and that the License Appeal Tribunal ("LAT") had exclusive jurisdiction over the benefit quantum.

The Insured contended that RBC could not unilaterally reduce benefits and that the Master lacked jurisdiction to set aside the Writs.

The Master found that the Registrar's filing of the Arbitration Order was an administrative act, not an order subject to a Master's review under Rule 37.14(3).

Consequently, the Master lacked jurisdiction to set aside the Writs.

While acknowledging jurisdiction to stay the Writs under the Courts of Justice Act, the Master refused to do so, finding no oppressive, vexatious, or abusive conduct by the Insured in enforcing a statutory right.

The defendants brought a motion for security for costs against the plaintiff, a U.S. resident with no assets in Ontario, in a complex family dispute over trust funds.

The plaintiff claimed impecuniosity and that his action was not devoid of merit.

The court found that the plaintiff had not demonstrated impecuniosity with sufficient financial disclosure and that, while the merits were not decisive, they favored granting security due to prior releases.

The court ordered the plaintiff to post security for costs totaling $130,000 on a partial indemnity scale, balancing the plaintiff's access to justice with the defendants' protection against an unenforceable costs award.

The plaintiff brought a motion to compel the defendant insurer to answer refusals from an examination for discovery and for leave to examine a second representative.

The action arose from the defendant's denial of the plaintiff's water loss claim on the basis that it was staged.

The plaintiff sought extensive disclosure regarding other similar claims denied by the defendant involving members of the same ethnic community, alleging racial profiling and bad faith.

The court ordered the defendant to produce its template denial letter and answer specific questions regarding any connection between the plaintiff's claim and the other claims.

However, the court denied the plaintiff's overbroad requests for the entire investigative files of the other claims, as the defendant was not relying on a conspiracy defence.

The court also dismissed the plaintiff's request to examine a second representative, finding the first representative was not uninformed or evasive.

The respondents brought a motion for security for costs in an application where the applicant sought the appointment of an arbitrator pursuant to a co-ownership agreement.

The respondents argued that the applicant was a nominal corporation with insufficient assets in Ontario.

The court found that the respondents met the initial onus under Rule 56.01(1)(d) and that the applicant failed to rebut it.

Applying a holistic approach, the court ordered the applicant to post security for costs in the amount of $15,000.

The plaintiffs sought leave to amend their Amended Statement of Claim to include further particulars regarding the alleged involvement of the Guatemalan police and military in sexual assaults during forced evictions, in addition to private security personnel.

The defendants opposed, arguing the amendments constituted a new cause of action, were unduly delayed, and would cause prejudice.

The court found that the proposed amendments were particulars of existing negligence claims, not a new cause of action, and that no actual or presumed prejudice would result to the defendants.

Leave to amend was granted.

The plaintiff brought a motion to set aside a Registrar's Order dismissing its action for delay under Rule 48.14.

The action had been dormant for over four years.

The court applied the Reid factors and found that the plaintiff failed to provide an adequate explanation for the delay, failed to show inadvertence, and failed to demonstrate that the defendants would not suffer actual prejudice.

The motion to set aside the dismissal was dismissed.

The court also noted that, had the dismissal been set aside, it would have granted the defendant's cross-motion for security for costs due to the plaintiff's insufficient assets.

The Toronto Transit Commission (TTC) brought a motion for leave to file additional evidence on an upcoming motion regarding litigation privilege over approximately 1,600 documents.

TTC also sought a preliminary ruling on waiver of privilege related to a sealed document.

The court dismissed the motion to file additional evidence, finding it unnecessary, an improper use of an adjournment, and contrary to the rule against case splitting.

The court directed the responding party to inspect the sealed document on a without prejudice basis and adjourned the waiver issue to the return of the main motion.