N. Kolos

The plaintiffs in a medical malpractice action brought a motion to extend the time for service of the statement of claim on two defendant physicians, and to validate service by email.

The two physicians had left the country and were difficult to locate.

The court granted the extension of time nunc pro tunc, finding no prejudice to the defendants and that the plaintiffs had made reasonable efforts to locate them.

The court validated service by email on one physician, but declined to validate service on the other physician residing in Israel, as the plaintiffs failed to establish that email service was permitted under the Hague Convention.

The defendant, a Toronto City Councillor, brought a motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action brought by the plaintiff auto parts business.

The action arose from comments the councillor made during a Scarborough Community Council meeting regarding complaints from a neighbouring Royal Canadian Legion branch about the plaintiff's conduct.

The court granted the motion, finding that the councillor's expression related to a matter of public interest.

The plaintiff failed to establish that the councillor's defences of qualified privilege, fair comment, and statutory immunity had no real prospect of success.

Furthermore, the public interest in protecting the councillor's expression outweighed the minimal evidence of harm suffered by the plaintiff.

The City of Toronto, as Third Party, brought a motion to amend its Statement of Defence to the Third Party Claim to plead two statutory defences under the City of Toronto Act, 2006: failure to provide written notice (s. 42(6)) and that damages were caused by an object on an untraveled portion of the highway (s. 42(4)).

The Defendants opposed the motion, arguing presumed prejudice due to the late stage of the proceedings and that the proposed defences lacked merit.

The court, acting as case manager and trial judge, granted the motion, finding no actual or presumed prejudice and reiterating that the test for allowing an amendment to pleadings is not whether the defence will ultimately succeed at trial.

The estate trustee sought directions regarding whether certain payments under a mediated consent judgment resolving family law claims could be distributed from the estate ahead of unrelated tort claims arising from aviation litigation.

The court considered the priority of equalization and dependant support claims under the Creditors’ Relief Act, the Family Law Act, and the Succession Law Reform Act.

The court held that the former spouse’s lump sum payment, characterized as an equalization payment and global settlement of retroactive and ongoing support, had priority over competing civil claims against the estate.

The court also held that the deceased’s common-law spouse’s lump sum dependant support award had priority over those claims.

However, the adult children failed to establish that they were dependants under the Succession Law Reform Act or that the amounts claimed were justified as support, and therefore their entitlements did not receive priority over the aviation claims.