Michael P. McGraw

In a long-running class action regarding defective temporomandibular joint implants, the parties brought ten procedural motions primarily concerning document production and pre-trial examinations.

The plaintiff sought further searches for key historical documents, alleging spoliation by the defendant, while the defendant sought forensic examination of documents produced by the plaintiff's key witness, alleging fabrication.

Balancing the need for discovery against proportionality and an impending peremptory trial date, the Master ordered targeted physical and electronic searches by the defendant, forensic inspection of disputed documents, and specific pre-trial examinations of key witnesses.

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 defendant brought a motion and the plaintiff brought a cross-motion to compel answers to outstanding undertakings and refusals from examinations for discovery in a wrongful dismissal action.

The court ordered the plaintiff to provide information regarding mitigation and income, largely resolving the defendant's motion by agreement.

The court ordered the defendant to answer questions regarding the plaintiff's start date and who made the decision to terminate him, finding them relevant to notice and bad faith claims.

However, the court dismissed the plaintiff's request for answers regarding the HR manager's personal motives, finding them speculative and overbroad.

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 plaintiffs brought a motion to compel the defendant, Toronto Hydro, to answer refusals arising from cross-examinations on affidavits filed in support of a motion to set aside an ex parte order extending the time for service of the statement of claim.

The refusals related to an inspection of damaged equipment and an engineering report.

The court found the engineering report was protected by solicitor-client privilege and privilege had not been waived.

However, the court ordered the defendant to disclose who directed the inspection and whether any notes or pictures were taken, with a potential court inspection of documents if privilege is claimed.

The plaintiffs and the defendant Province brought cross-motions to compel answers to undertakings and refusals arising from examinations for discovery in an action concerning an assault on an inmate at a correctional facility.

The court ordered the Province to produce a redacted range plan, summaries of officer training and discipline, and an index of standing orders, balancing relevance with institutional security concerns.

The court dismissed the Province's motion to compel information about the plaintiff's brother's criminal and employment history, finding it irrelevant and disproportionate for assessing the plaintiff's hypothetical earning capacity.

The plaintiff, a self-represented litigant in a wrongful conviction action, brought a motion to appoint a non-lawyer with a history as a vexatious litigant as an amicus curiae to assist him during examinations for discovery.

The Crown defendants brought a cross-motion to exclude the non-lawyer from attending further discoveries due to his disruptive conduct.

The court dismissed the plaintiff's motion, finding that the non-lawyer did not meet the criteria for an amicus curiae and that his appointment would violate the Rules of Civil Procedure and the Law Society Act.

The court granted the Crown defendants' motion, barring the non-lawyer from attending further discoveries due to his history of disruptive behaviour and failure to comply with previous court directions.

The court also permitted the plaintiff to attend the discoveries of the companion action plaintiffs by video or telephone.

In the context of a pending summary judgment motion for a wrongful dismissal action, the parties brought four procedural motions.

The plaintiffs sought leave to file additional documents and a supplementary affidavit, and a declaration that they could attend each other's cross-examinations.

The defendant sought an order compelling the production of privileged communications.

The Master granted the plaintiffs' motions, finding they met the test for filing additional evidence and that there was insufficient risk of evidence tailoring to justify an exclusion order.

The defendant's motion for privileged documents was dismissed as there was no deemed waiver of solicitor-client privilege.

The defendants brought a motion to release $114,000 held in trust as security in place of a discharged Certificate of Pending Litigation (CPL).

The plaintiffs had originally obtained the CPL ex parte to secure a disputed $150,000 loan related to a real estate development project.

The defendants argued the plaintiffs had no reasonable interest in the property because the mortgage was discharged and replaced by an unsecured promissory note, and that the plaintiffs failed to make full and fair disclosure on the ex parte motion.

The Master dismissed the motion, finding a triable issue regarding the validity of the promissory note and mortgage discharge, and accepting the plaintiffs' explanation for not disclosing certain documents they did not possess or recall signing.

The plaintiff brought a motion for a status hearing under Rule 48.14 to avoid the dismissal of his personal injury action for delay.

The defendant elevator maintenance company opposed the motion and brought a cross-motion to dismiss the action for delay under Rule 24.01.

The court found that the plaintiff provided a reasonable explanation for the delay, which was largely due to the inadvertence of his counsel, and that the defendants would not suffer non-compensable prejudice if the action proceeded.

The plaintiff's motion was granted and the defendant's cross-motion was dismissed.

The plaintiffs brought a motion to remove Friedman Law Professional Corporation (FLPC) as lawyers of record for the defendants due to an alleged conflict of interest.

FLPC had previously represented the plaintiff Keith Alexander in a family law application involving complex family and business disputes.

The court found that the prior retainer was sufficiently related to the current defamation action, which involved allegations of abuse and extortion related to the same family disputes.

The court concluded that FLPC likely acquired relevant confidential information during the prior retainer and ordered FLPC removed as counsel of record to protect the integrity of the justice system.

The plaintiff brought a motion for a status hearing under Rule 48.14 to set a timetable for the remaining steps in an action commenced in 2010.

The defendant opposed the motion and sought dismissal for delay.

The court found that the delay was largely attributable to the plaintiff's former counsel, who failed to advance the action and refused to release the file due to a solicitor's lien.

The court held that the plaintiff had not abandoned the action and should not be penalized for counsel's inaction.

Furthermore, the court found no actual prejudice to the defendant, despite the deteriorating health of its key witness and the destruction of some documents.

The motion was granted, allowing the action to proceed on its merits.

The defendants brought a motion to compel the plaintiffs to answer approximately 58 refusals arising from an examination for discovery.

The underlying action involves claims of breach of a dealership agreement, trademark infringement, and false warranty claims.

The court applied the principles of relevance and proportionality under the Rules of Civil Procedure.

The court ordered the plaintiffs to make further inquiries regarding a specific networking trip and to produce targeted reports related to alleged false warranty claims, but dismissed the defendants' requests for broader electronic searches and financial records as disproportionate.

The plaintiffs brought a motion to set aside a Registrar's order dismissing their franchise dispute action for delay.

The delay was largely attributed to the disappearance of the plaintiffs' initial counsel with trust funds, and subsequent difficulties obtaining the file from replacement counsel.

The court applied the Reid factors and found the plaintiffs had adequately explained the delay, intended to proceed, and the defendants would not suffer actual prejudice.

The dismissal order was set aside.

However, the court granted the defendants' request for security for costs under Rule 56.01, ordering the plaintiffs to post $30,000 as they failed to demonstrate sufficient assets in Ontario.