Peter T.J. Danson

The plaintiffs brought a motion to compel the Bank of Montreal to provide answers to discovery questions regarding the disappearance of contents from their safety deposit box.

The Bank refused, claiming litigation privilege and solicitor-client privilege over its internal investigation report, and also citing relevance and proportionality for other questions.

The court found that the Bank failed to establish that the dominant purpose of its investigation was litigation, thus denying the claim of litigation privilege.

Solicitor-client privilege was also deemed inapplicable.

The court ordered the Bank to answer most of the refused questions, finding them relevant to the plaintiffs' claims of negligence and breach of contract, including questions about the investigation process and a prior safety deposit box cleanup.

One speculative question was properly refused.

The Bank was also directed to serve an amended affidavit of documents.

The Applicants sought to set aside an arbitrator's decision denying their challenge for bias and to remove the arbitrator, alleging reasonable apprehension of bias due to the arbitrator's undisclosed involvement in another arbitration with the Respondents' counsel, and actual bias from a costs decision.

The court dismissed the application, finding the bias challenge was not brought in a timely manner and that neither reasonable apprehension of bias nor actual bias was established.

The court found no meaningful overlap between the arbitrations and that the arbitrator's finding of 'false statements' did not indicate actual bias.

The appellant, Domarina Malek, appealed a Superior Court order that enforced a settlement agreement and dismissed her claim, denying her request for an adjournment.

Malek, who became self-represented after her counsel withdrew, argued she was under duress and mentally incapacitated when agreeing to the settlement.

The motion judge denied the adjournment, citing the long-standing litigation and Malek's failure to secure new counsel or provide medical evidence.

The Court of Appeal dismissed the appeal, finding the motion judge's denial of the adjournment was a reasonable exercise of discretion, given the contextual factors including the duration of the litigation, lack of explanation for not retaining new counsel, absence of medical evidence, and failure to attend a pre-trial.

This endorsement arises from a case conference concerning a personal injury action for a plaintiff who was a minor at the time of the accident and is now an adult.

The defendant insurer brought a motion to determine the plaintiff's mental capacity to litigate and to appoint a suitable litigation guardian, potentially the Public Guardian and Trustee.

The current litigation guardian, the plaintiff's aunt, is self-represented and facing significant challenges in advancing the litigation due to the plaintiff's severe medical and psychiatric conditions requiring constant care.

The court, noting the significant delays and the plaintiff's catastrophic injury report, requested the defendant insurer to forward the endorsement and the report to the Public Guardian and Trustee for consideration of voluntarily acting as litigation guardian, aiming to potentially vacate the scheduled motion date.

The court also directed a further case conference for the parties to provide briefs, indicating the possibility of deciding the matter at that conference.

The defendant, Peter Cunnington, brought a motion seeking an order to stay or dismiss the plaintiff's action, or alternatively, to require the plaintiff to post security for defence costs pursuant to Rules 56.01 and 56.02 of the Rules of Civil Procedure.

The plaintiff, ordinarily resident in Michigan, opposed the motion.

The court found that the plaintiff's counsel had adequately responded to the demand regarding residency, thus declining to stay or dismiss the action under Rule 56.02.

However, the court determined that the defendant met the low onus under Rule 56.01(1)(a) by establishing the plaintiff's ordinary residency outside Ontario.

The plaintiff failed to provide sufficient evidence of assets in Ontario or a reciprocating jurisdiction to satisfy a potential costs order, relying on a hearsay affidavit from counsel.

While the claim was not deemed frivolous or vexatious under Rule 56.01(1)(e), the plaintiff, not being impecunious, failed to demonstrate a "real possibility of success" given significant causation and credibility issues.

The court also found the defendant's delay in bringing the motion was sufficiently explained and did not prejudice the plaintiff.

Consequently, the court ordered the plaintiff to post $15,000 as security for costs, prohibiting further steps in the proceeding until the security is posted.

The plaintiff landlord sued the tenant for breach of a commercial lease after the tenant abandoned the premises.

The tenant alleged fundamental breach and breach of quiet enjoyment due to various issues including insect infestation, mold, roof leaks, HVAC problems, elevator breakdowns, and safety concerns.

The court found that the tenant failed to establish a fundamental breach or breach of the covenant of quiet enjoyment, noting inconsistent evidence, lack of proper notice to the landlord, and the landlord's reasonable efforts to address reported issues.

The court also found that the landlord took reasonable steps to mitigate damages.

The landlord's claim for rental arrears and future rent was granted, while the tenant's claims for set-off and rent abatement were dismissed.

Rossana Lim and her daughter Shannon Lim brought an application for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a breach of section 11(b) (right to trial within a reasonable time).

The accused were charged with fraud-related offences and faced a trial date set for January 8, 2018, approximately 43 months and 9 days after the initial charge.

The court dismissed the application, finding that while the delay exceeded the Jordan presumptive ceiling of 18 months, it was justified by defence delay, case complexity, and the transitional exceptional circumstance of good faith plea negotiations conducted under the pre-Jordan legal framework.

The Regional Municipality of York, City of Vaughan, and York Regional Rapid Transit Corporation brought a Rule 21 motion to stay the plaintiff's action for lack of jurisdiction, arguing that all claims constituted "injurious affection" under the Expropriations Act and fell within the exclusive jurisdiction of the Ontario Municipal Board (OMB).

The plaintiff conceded some claims (reduction in market value, business losses, quiet use and enjoyment during construction) were for injurious affection.

However, the plaintiff contended that claims for physical damage to its building and walkways, claims against Bell Canada and Robert B. Somerville Company Limited, and claims for ongoing vibrations were outside the OMB's jurisdiction.

The court found that while the work by Bell Canada and Somerville was under statutory authority, the alleged physical damage was not proven to be an inevitable consequence of the authorized work, a key requirement for injurious affection.

Consequently, the court stayed the conceded claims but allowed the claims for physical damage, those against Bell Canada and Somerville, and claims for ongoing vibrations to proceed in the Superior Court.

The Plaintiffs' former solicitors sought leave to appeal an $800 costs award made against them personally by Barnes J. The costs were awarded due to the solicitors' failure to properly serve an order removing themselves from the record, leading to an unnecessary adjournment of a summary judgment motion.

The court considered the two-part test for awarding costs against a solicitor personally, which requires a clear dereliction of duty causing unnecessary costs and the exercise of discretion sparingly and with extreme caution.

The motion for leave to appeal was dismissed, as the court found no strong grounds to believe Barnes J. erred in principle or was plainly wrong, implicitly addressing the required test.

The plaintiffs, Greenwald et al., brought a motion seeking an extension of time to set their action down for trial and leave to amend their statement of claim to add Monterey Park Inc. as a defendant.

The action concerned alleged construction deficiencies in a house purchased from Ridgevale Inc. The plaintiffs argued that Monterey Park Inc., controlled by one of the existing defendants, was an alter ego of Ridgevale Inc. and the true vendor.

The court granted the motion, finding that the plaintiffs provided an adequate explanation for the delay in advancing the litigation and that the defendants would not suffer non-compensable prejudice.

Regarding the amendment, the court determined that the claim against Monterey Park Inc. was not statute-barred, as the plaintiffs only discovered sufficient information to advance the alter ego claim in June 2014.

Crucially, the Master emphasized that the underlying merits of a proposed claim are not a relevant factor to consider on a motion to amend pleadings under Rule 5.04(2) of the Rules of Civil Procedure.

The defendant brought a motion to transfer the action from Barrie to Toronto, arguing that all parties, the motor vehicle accident, and the plaintiff's medical treatment were predominantly located in Toronto, with no substantial connection to Barrie other than the plaintiffs' counsel's practice location.

The plaintiffs opposed, asserting that remaining in Barrie would avoid significant delays and be more cost-effective.

The court granted the transfer, finding that Toronto was a significantly better venue based on a holistic application of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, emphasizing the convenience of parties and witnesses, the location of events and damages, and the local community's interest.

The defendants brought a motion to strike affidavits filed by counsel for the plaintiff after cross-examination on an earlier affidavit.

The court held that the subsequent affidavit constituted an improper attempt to repair or explain earlier evidence following cross-examination, effectively amounting to a belated re‑examination contrary to subrule 34.11(3) of the Rules of Civil Procedure.

The court emphasized that re‑examination must occur immediately following cross‑examination and declined to dispense with the rule under Rule 2.03 because no justification was provided.

The June affidavit was struck, while a second affidavit from another lawyer was disregarded as unnecessary and duplicative of an existing transcript.

The applicant sought a declaration that the respondent’s automobile insurer was solely responsible for defending and indemnifying him in a personal injury action arising from an accident during the unloading of equipment from a tow truck.

The court considered whether the applicant qualified as an “occupant” of the vehicle under the garage automobile policy and whether the exclusion clause in the applicant’s home insurance policy applied.

Applying the purposive approach reflected in appellate authorities interpreting the use or operation of an automobile, the court held that assisting in unloading the truck constituted an ordinary use of the vehicle and the applicant was therefore an “occupant” for insurance purposes.

However, the court found that unresolved factual issues remained regarding the applicability of the home insurance exclusion.

The application was therefore allowed in part, with the remaining coverage issue to be determined after the trial of the underlying action.

Following an unsuccessful motion by the third party, the defendants sought substantial indemnity costs, arguing the motion was hopeless.

The court rejected the claim for substantial indemnity costs, finding the third party was entitled to pursue the motion.

Applying principles of reasonableness and proportionality, the court awarded the defendants partial indemnity costs fixed at $13,000 plus HST and disbursements.