M. Katzman

The plaintiffs brought a motion for leave to amend their Statement of Claim to add new claims under the Fraudulent Conveyances Act and the Assignments and Preferences Act, as well as claims for unjust enrichment and constructive trust.

The proposed amendments arose from a telephone conversation in which the individual defendant allegedly stated his intention to make an assignment in bankruptcy and admitted to transferring funds to avoid paying the plaintiffs.

The defendants opposed the motion, arguing the proposed amendments lacked sufficient particulars.

The court granted leave to amend for the statutory claims, finding they were legally tenable and sufficiently particularized given the plaintiffs' current knowledge.

However, the court denied the amendments for unjust enrichment and constructive trust, with leave to amend, as they lacked sufficient material facts connecting the allegations to the elements of those claims.

The defendants brought a motion for leave to conduct a second psychiatric assessment of the plaintiff, despite the action having been set down for trial almost four years prior.

The plaintiff claimed severe psychological impairment from two motor vehicle accidents.

The defendants' psychiatrist had not assessed the plaintiff since 2015, and the plaintiff's experts recently delivered updated reports indicating her condition had worsened and she was permanently unemployable.

The court granted leave under Rule 48.04(1), applying a flexible approach focused on trial fairness.

The court also ordered the plaintiff to attend a limited one-hour in-person second psychiatric assessment, finding it necessary to level the playing field and avoid prejudice to the defendants.

The defendant brought a motion that was ultimately deemed abandoned after the plaintiff agreed to limit his claims to policy limits.

A dispute also arose regarding who could cross-examine the defendant, leading to thrown away costs.

The court awarded the plaintiff $6,262.26 in costs thrown away, representing approximately half of the fees sought plus disbursements, noting that the motion was not certain to succeed and the plaintiff was put to unnecessary expense.

The defendant brought an urgent motion to compel the plaintiff to attend two independent medical examinations (physiatry and psychological) shortly before trial.

The plaintiff opposed the motion, arguing it was brought too late.

The court granted the request for the physiatry examination, finding that the plaintiff's late service of a physiatry expert report constituted a substantial change in circumstances warranting a responding report.

However, the court dismissed the request for a psychological examination, as the plaintiff had not served a psychological expert report and the defendant had long been aware of the psychological claims.

Costs of $3,000 were awarded to the plaintiff.

The plaintiff unsuccessfully appealed a Master's order regarding an extension of time for serving a Statement of Claim under the Construction Lien Act.

The successful defendant sought costs of $5,382.42 on a partial indemnity basis, while the plaintiff argued for $1,581.15.

The court fixed costs at $3,500 all inclusive, payable to the defendant in any event of the cause, applying the principle that costs should reflect the fair and reasonable expectations of the unsuccessful litigant.

The plaintiff in a personal injury action brought a motion to compel a statutory third party insurer to answer questions refused at an examination for discovery.

The questions related to the insurer's investigation and reasons for denying coverage to the defendant.

The court dismissed the motion, holding that under Rule 31.06(4) of the Rules of Civil Procedure, an insurer must disclose the reasons for its denial of coverage but is not required to disclose the details of the investigation that led to that decision.

The plaintiff brought a motion to validate service of a statement of claim in a construction lien action or, alternatively, to extend the time for service under the Construction Lien Act.

The court found that the plaintiff failed to prove that the statement of claim had been personally served within the required 90‑day period and that the delay of approximately 16 months was unexplained and unsupported by compelling reasons.

Given the statutory objective of expeditious resolution of lien claims and the prejudice caused by maintaining a lien against the property, the court declined to extend time for service with respect to the lien claim.

The lien was therefore declared expired.

However, the court permitted the contractual and quantum meruit portions of the claim to proceed as an ordinary civil action and validated service for that limited purpose.

Following the dismissal of the defendant’s motion for summary judgment, the court determined the appropriate costs award.

The dispute involved a commercial claim for damages arising from an allegedly faulty communications system supplied by the defendant, with the motion seeking to limit the plaintiff’s potential recovery through contractual provisions.

The defendant argued that costs should be reduced due to the plaintiff’s non-compliance with a scheduling order and alleged duplication of legal work between counsel and instructing solicitor.

The court held that no prejudice arose from the procedural irregularities and rejected the duplication argument, emphasizing the value of briefing specialized advocacy counsel.

Partial indemnity costs of the motion were awarded to the plaintiff in full as claimed.

The defendant brought a summary judgment motion seeking a determination that the plaintiff’s damages were contractually limited to amounts paid under a product purchase and services agreement containing a limitation of liability clause.

The dispute arose after the defendant temporarily shut down communication modules supplied after the original agreement when payment was allegedly outstanding.

The plaintiff argued that the limitation clause did not apply to subsequently supplied modules because the invoices purporting to incorporate the agreement’s terms were issued only after the orders were placed and were not supported by a written amendment as required by the agreement’s entire agreement clause.

The court held that the defendant failed to establish that the limitation clause applied to the later transactions and found the contractual documentation insufficient to incorporate those terms.

Summary judgment was therefore refused and the court determined that the limitation clause did not apply to the later modules.

Two related actions arising from a motor vehicle accident involved disputes over defence medical examinations.

In the tort action, the defendant’s insurer sought a psychiatric defence medical examination, while in the separate action against the plaintiff’s own insurer the plaintiff sought an order that the same examination would serve both defendants.

The court held that the insurers were adverse in interest because each could attribute the plaintiff’s ongoing psychological condition to the other’s conduct, particularly in light of allegations that the insurer’s handling of accident benefits exacerbated the plaintiff’s injuries.

The court further held that adversity between co‑defendants is not a necessary precondition to separate defence medical examinations; the governing consideration is fairness in the adversarial process.

The third party insurer was permitted to conduct the psychiatric examination and the plaintiff’s motion to bind the other insurer to that examination was dismissed.

A creditor of a bankrupt taxi company was authorized to pursue proceedings alleging that the transfer of several taxi dispatch telephone numbers to related parties constituted a fraudulent preference, fraudulent conveyance, or transfer at undervalue under the Bankruptcy and Insolvency Act and related provincial statutes.

The court held that the transfer arose from the exercise of a pre-existing secured note granting a right to acquire the assets upon default.

Claims under the Bankruptcy and Insolvency Act preference provisions, the Assignments and Preferences Act, and the Fraudulent Conveyances Act failed because the relevant intent was assessed at the time the security was granted and insolvency or fraudulent intent was not proven.

However, the court found that the transaction constituted a transfer at undervalue under s. 96(1)(b) of the Bankruptcy and Insolvency Act.

Judgment was granted against two respondents jointly and severally for the difference between the value of the telephone-number goodwill and the consideration received.