M.P. McGraw

The plaintiff brought a motion to compel the City of Toronto's representative to re-attend an examination for discovery and to answer various undertakings and refusals, alleging improper conduct by the City's counsel.

The Master found no misconduct by the City's counsel that would render the examination futile.

However, applying principles of proportionality and noting that some refusals were improper, the Master ordered the City's representative to re-attend virtually for 30 minutes to answer follow-up questions and directed the City to provide specific clarifications regarding winter maintenance records and procedures.

The defendants in a franchise dispute brought a motion to compel the plaintiff to provide further particulars and to strike numerous paragraphs of the plaintiff's amended statement of claim.

The plaintiff, a former franchisee of a dog daycare business, alleged that the defendants conspired to manufacture grounds to terminate the franchise agreement and take over the location.

The Master dismissed the majority of the defendants' demands for particulars, finding they improperly sought evidence rather than material facts required for pleading.

The Master also declined to strike most of the challenged paragraphs, though a few specific paragraphs and inflammatory words were struck with leave to amend.

The plaintiff brought an ex parte motion for Certificates of Pending Litigation, which resulted in an interim order preventing the defendants from encumbering or transferring the properties.

After the plaintiff's related injunction motion was dismissed, the plaintiff discontinued the action and abandoned the CPL motion.

The defendants sought costs for the abandoned CPL motion.

The court awarded the defendants costs fixed at $6,000, finding that the plaintiff's conduct unnecessarily lengthened the proceeding, though it did not warrant substantial indemnity costs.

The plaintiff brought a motion for leave to issue a Certificate of Pending Litigation (CPL) regarding a property she had agreed to purchase from the defendants.

The plaintiff alleged breach of fiduciary duty and unjust enrichment, claiming a constructive trust over the property.

The court found that while the plaintiff established a triable issue regarding a constructive trust, it was not just and equitable to grant the CPL because the property was not unique, damages were an adequate remedy, and both parties wished for the property to be sold.

The motion was dismissed without prejudice to the plaintiff seeking alternative security.

Following the successful motion by the plaintiff to set aside a registrar's dismissal order, the parties could not agree on costs.

The defendant argued that no costs should be awarded because the plaintiff was granted an indulgence due to her former counsel's negligence.

The court held that while the plaintiff received an indulgence, the defendant's unreasonable opposition and failure to accept a reasonable offer to settle warranted a costs award.

The plaintiff was awarded $6,000 in costs on a partial indemnity scale.

The plaintiffs were completely successful on a motion for leave to amend their Statement of Claim.

Both parties sought costs of the motion.

The defendant argued that the plaintiffs received an indulgence and should not be awarded costs, or should pay the defendant's costs.

The court found that while the amendment was an indulgence, the defendant raised multiple meritless arguments that unnecessarily lengthened the proceeding.

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

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.

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 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 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.

The plaintiff brought a motion to amend his Statement of Claim to substitute the names of a doctor and a nurse for 'Doctor Doe 1' and 'Nurse Doe 1' on the basis of misnomer, after the expiry of the limitation period.

The proposed defendant doctor opposed the motion, arguing it was an attempt to circumvent the limitation period.

The court applied the 'litigating finger' test and found that the proposed defendant's insurer, having received the Statement of Claim, would have known the plaintiff intended to sue the emergency room physician who treated him.

The court granted the motion, concluding it was a case of misnomer and no non-compensable prejudice would result.

The plaintiff and defendants brought cross-motions to compel answers to undertakings, under advisements, and refusals arising from examinations for discovery in a construction dispute.

The plaintiff sought information regarding its trust claims and the defendants' set-off claim, while the defendants sought the plaintiff's pricing and cost documentation for a fixed-price contract.

The Master ordered the defendants to produce a final copy of a change directive and clarify their set-off documentation, adjourning the remaining trust questions.

The Master also ordered the plaintiff to produce documentation supporting a specific credit it had agreed to, finding that the fixed-price nature of the contract did not insulate it from producing documents related to a variation of that price.

The plaintiff contractor brought a motion to compel the defendant transit commission to produce an unredacted copy of a project assessment report prepared by a third-party consultant.

The defendant claimed litigation privilege over the redacted portions, arguing they were prepared in reasonable contemplation of litigation regarding delay claims.

The court found that while litigation was reasonably contemplated, the defendant failed to establish that the dominant purpose of the redacted portions was litigation, as the report was primarily commissioned to assess project status, scheduling, and budget to expedite completion.

The motion was granted, and the defendant was ordered to produce the unredacted report.

The defendants, a police officer and the Crown, brought motions for security for costs against the plaintiffs, who were suing for negligent investigation and malicious prosecution following their acquittals on sexual assault charges.

The court first determined that leave was required under Rule 48.04(1) to bring the motions after the actions were set down for trial, and granted leave.

The court then found that the defendants had a good defence on the merits, as the plaintiffs' committal to trial after a preliminary inquiry provided strong evidence of reasonable and probable grounds for the charges.

Concluding that the plaintiffs had insufficient assets in Ontario and that an order would not prevent them from proceeding to trial, the court ordered the plaintiffs to post security for costs in the amounts of $40,000 and $30,000.

The Ontario Real Estate Association (OREA) brought a motion for leave to intervene in an application to set aside an arbitration appeal decision regarding a real estate commission dispute.

The applicant opposed the motion, arguing OREA had no genuine interest in the private dispute.

The court granted the motion, finding that OREA had a genuine interest in the jurisdictional issues raised, specifically whether the applicant was prohibited from commencing the application under the arbitration scheme's rules, and that OREA could make a useful contribution without causing injustice to the parties.

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.