Michael P. McGraw

The moving party defendant, Dufferin, brought a motion to amend the statement of claim to correct the names of John Doe defendants to three proposed defendants under the doctrine of misnomer.

The court found that a defendant has standing to bring a misnomer motion.

The court granted the motion with respect to two proposed defendants (TIL and TIES), finding that the 'litigating finger' pointed at them and they would not suffer non-compensable prejudice.

However, the court dismissed the motion with respect to the third proposed defendant (TDI), finding that although the 'litigating finger' pointed at them, they would suffer non-compensable prejudice due to significant delay and lack of notice, and the moving party failed to show reasonable due diligence under the discoverability principle.

The defendant brought a motion to stay the plaintiff's action, arguing that New Brunswick, not Ontario, was the proper jurisdiction.

The plaintiff, an Ontario corporation, sued the defendant for breach of contract and wrongful misappropriation arising from a transportation agreement and unpaid invoices.

The court applied the Van Breda test and found that the defendant was domiciled or resident in Ontario, carried on business in Ontario, and the contract was likely made in Ontario.

The court concluded there was a real and substantial connection to Ontario and the defendant failed to demonstrate that New Brunswick was a clearly more appropriate forum under the doctrine of forum non conveniens.

The motion was dismissed.

The defendant brought a motion for security for costs against the foreign corporate plaintiffs.

The plaintiffs conceded entitlement to security for costs, leaving only the quantum in dispute.

The court considered the parties' conduct, the merits of the claim, and the applicable tariff rates, ultimately ordering the plaintiffs to post $33,000 as security for costs up to and including mediation.

Following a successful motion by the plaintiffs to compel the defendants to answer undertakings and refusals, the court determined the appropriate costs award.

The plaintiffs sought $35,000 representing 70% of their full indemnity costs, while the defendants argued the parties should bear their own costs or pay $5,000.

The court found no basis to depart from the general rule that costs follow the event, but declined to award costs on a substantial indemnity scale as the defendants' conduct was not reprehensible.

The court fixed costs at $26,000 payable by the defendants to the plaintiffs.

Following the dismissal of the plaintiff's action for delay, the defendants sought costs of the action and motions on a partial indemnity scale.

The defendants also sought an order that the plaintiff's non-party principal be jointly and severally liable for the costs, as the plaintiff corporation was impecunious.

The court awarded costs against the plaintiff corporation but declined to order non-party costs against the principal, finding no evidence of fraud, gross misconduct, or abuse of process that would justify such an exceptional remedy.

The defendant brought a motion to compel the out-of-province plaintiff to attend an examination for discovery in person at her own expense.

The plaintiff, who resided in Saskatchewan, opposed the motion and sought to have the examination in Toronto at the defendants' expense or by video conference.

The Master held that it was just and convenient to provide the defendant with the choice of conducting the examination by video conference or in person in Toronto, with the travel or video conferencing costs to be shared equally between the plaintiff and the defendants.

The defendant brought a motion to compel the plaintiff to produce its lawyer's transaction file, arguing the plaintiff waived solicitor-client privilege by filing an affidavit from its transaction counsel on an upcoming summary judgment motion.

The court reviewed the principles of deemed waiver and found that the lawyer's affidavit contained numerous substantive statements regarding legal advice, the plaintiff's state of mind, and selective disclosure of privileged communications.

The court concluded that fairness and consistency required the production of the balance of the transaction file, excluding retainer agreements, dockets, and accounts.

The plaintiff, a former President of the defendant company, brought an action for wrongful dismissal and oppression, claiming a 15% equity interest.

The plaintiff brought a motion to compel the defendants to produce a further and better affidavit of documents, specifically seeking financial and operational records.

The defendants brought a cross-motion for divided disclosure, arguing that the threshold issue of oppression should be determined before the consequential issue of valuation, and that producing the documents to the plaintiff (now working for a competitor) would cause serious prejudice.

The Master dismissed the defendants' cross-motion, finding that the issues were not clearly severable and that the defendants failed to demonstrate serious prejudice.

The Master ordered the production of most of the disputed documents, subject to a confidentiality order.

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 defendant brought a motion to compel the plaintiff to answer undertakings and a refusal from his examination for discovery in a motor vehicle accident claim.

The parties resolved the undertakings at the hearing.

The remaining issue was the plaintiff's refusal to produce his cellular phone call log for the 30 minutes prior to the accident.

The court ordered the production of the call log, finding it relevant to the defendant's pleaded allegation that the plaintiff was negligent by using his phone at the time of the collision, despite the plaintiff's denial under oath.

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.

The defendant brought a motion seeking two orders: a defence medical examination with an orthopaedic surgeon and an in-home cost of care assessment with an occupational therapist.

The court dismissed the request for the orthopaedic examination, finding it would merely corroborate an existing physiatrist's report and was not necessary for trial fairness.

However, the court granted the request for the in-home cost of care assessment, noting significant changes in the plaintiff's condition and living circumstances since the last report, and that the assessment was necessary for the defendant to fairly meet the plaintiff's substantial future cost of care claim, particularly regarding psychological and psychiatric impacts not fully covered by previous physical assessments.