Pierre E. Roger

The moving party sought leave to amend its statement of claim to add an alternative theory of liability alleging negligent hiring and supervision of a sales representative by an energy company, and also requested settlement of a discovery plan regarding documentary production and discovery scope.

The court applied Rule 26.01 of the Rules of Civil Procedure, emphasizing that amendments should be granted unless they would cause non-compensable prejudice or are clearly impossible of success.

The court held that negligent hiring and supervision constitute a recognized cause of action and that the proposed amendments disclosed a tenable claim, though certain phrases were struck for being prejudicial, argumentative, or lacking material relevance.

The court permitted the amendments with modifications and ruled on disputed discovery requests, allowing several document productions subject to limitations for relevance and proportionality.

The plaintiff condominium corporation brought a motion to remove the defendants' lawyer, who was also a defendant, arguing he would be a material witness and had a conflict of interest.

The defendants brought a cross-motion to remove the plaintiff's lawyers, alleging they had become part of the litigation and were necessary witnesses.

The court granted the plaintiff's motion in part, disqualifying the defendants' lawyer for issues to be tried after an upcoming June 2012 trial, but allowing him to remain for the June trial itself.

The defendants' cross-motion to remove the plaintiff's lawyers was dismissed.

The plaintiff brought a motion seeking an order compelling foreign affiants of the defendants to attend in Ottawa or London, England for cross‑examination on affidavits filed in support of a forum non conveniens motion.

The defendants opposed the request and proposed that the cross‑examinations occur by video conference from Iraq, noting that they had not attorned to the jurisdiction of the Ontario court.

Applying Rule 34.07 of the Rules of Civil Procedure and the governing “just and convenient” test for examinations of persons residing outside Ontario, the court held there is no presumption for or against video conferencing.

Considering proportionality, travel costs, logistical challenges, and modern availability of technology, the court determined that video conferencing was the most appropriate method.

The motion was dismissed and the cross‑examinations were ordered to proceed by video conference, with arrangements and initial costs divided between the parties.

The defendants brought a motion seeking particulars of allegations in an amended statement of claim relating to copyright infringement in computer software.

The court held that the allegations, together with the particulars already provided, were not bald and that the defendants bore the onus of establishing that the requested particulars were not within their knowledge and were necessary to plead a defence.

The only evidence filed was an affidavit from the defendants’ lawyers, which the court found insufficient to satisfy that burden.

The court declined to exercise its discretion under Rule 25.10 of the Rules of Civil Procedure to order particulars.

The motion was dismissed with costs, subject to a temporary stay permitting the defendants to file further affidavit evidence and potentially have the motion return.