R.A. Muir

The moving party sought the production of files held by a non-party law firm.

The responding party objected to producing a subset of the files relating to his corporation, claiming they were irrelevant and subject to lawyer-client privilege.

The Master found that the responding party's review of the files was insufficiently thorough and that the files likely contained relevant, non-privileged documents.

The Master ordered the responding party to disclose all documents in the remaining files in a supplementary affidavit of documents, properly categorizing them into privileged and non-privileged schedules.

The defendants brought a motion to compel the plaintiff to answer refusals relating to a prior motor vehicle accident from 2004.

The plaintiff had already produced medical records for four years prior to the subject 2012 accident, which showed the prior injuries had largely resolved.

The court dismissed the motion, finding the requested 2004-2008 records were of marginal relevance and their production would offend the principle of proportionality.

The defendants were ordered to pay costs of $1,500.

The plaintiff brought two motions: one for leave to amend the statement of claim to add fraudulent conveyance allegations against the defendants' children, and another to compel answers to questions refused during cross-examinations on affidavits.

The defendants did not oppose the amendment but opposed the refusals motion.

The court granted leave to amend as of right.

However, the court dismissed the refusals motion, finding that the broad questions regarding the children's financial circumstances were not relevant to the pending jurisdiction motion, which would focus on factors such as where the parties reside and where the loan contracts were made.

The defendants brought a motion for security for costs against the corporate plaintiff under Rule 56.01(1)(c) and (d) of the Rules of Civil Procedure.

The plaintiff had an unpaid costs order of $19,000 and outstanding executions exceeding $4,000,000.

The court found the defendants met their initial onus, and the plaintiff failed to provide sufficient financial disclosure to establish impecuniosity or demonstrate a good chance of success on the merits.

The motion was granted, and the plaintiff was ordered to post $50,000 in security for costs in stages.

The defendants, Economical Mutual Insurance Company and Firstbrook, Cassie & Anderson Limited, brought motions for leave to amend their statements of defence under Rule 26.01.

The plaintiff opposed several proposed amendments, arguing they improperly pleaded res judicata, issue estoppel, withdrew admissions, and pleaded evidence rather than facts.

The Master granted leave to both defendants to amend their pleadings, finding no non-compensable prejudice to the plaintiff and concluding that the proposed amendments were legally tenable and properly pleaded the necessary elements of the defences.

The defendants brought a motion to set aside their noting in default, to strike the statement of claim for failing to plead material facts, and to transfer the action to the ordinary procedure.

The court set aside the noting in default on consent.

The court dismissed the motion to strike, finding the pleading sufficient when read generously, as the basic elements of the claim for unpaid materials were pleaded and particulars had been provided.

The court granted the request to transfer the action to the ordinary procedure, as the declaratory and mandatory relief sought brought the proceeding outside the ambit of the simplified procedure.

Following the dismissal of the plaintiff's motion for leave to issue a certificate of pending litigation, the court determined the costs of the motion.

The defendants sought substantial indemnity costs of $38,500 based on prior offers to settle, while the plaintiff argued for partial indemnity costs of $12,000.

The court found that the defendants' offers to settle contained conditions not reflected in the final order, and thus did not warrant elevated costs.

The court awarded the defendants their partial indemnity costs, fixed at $26,000 inclusive of HST and disbursements.

The plaintiff brought a motion for leave under Rule 48.04(1) to seek payment of expert fees, amend its statement of claim, and obtain certificates of pending litigation (CPL) after the action was set down for trial.

The Master granted leave due to the defendants' ongoing failure to comply with production orders, which constituted a substantial and unexpected change in circumstances.

The defendants were ordered to pay $10,000 in wasted expert fees caused by their piecemeal production.

While leave to amend the statement of claim was granted, the request for CPLs was dismissed because the plaintiff failed to demonstrate a reasonable claim to an interest in land, as the underlying agreement did not establish a fiduciary relationship or joint venture.

The defendants sought leave under Rule 39.02 of the Rules of Civil Procedure to file an expert affidavit after conducting cross-examinations in relation to a pending summary judgment motion.

The plaintiff opposed the request, arguing the expert report was inadmissible, failed to meet the Rule 39.02 test, and did not comply with Rule 39.01(7).

The court applied the flexible, contextual approach articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd. and found the proposed evidence relevant, responsive to matters raised during cross-examination, and supported by a reasonable explanation for the delay.

The court also concluded the plaintiff would suffer no non‑compensable prejudice because the summary judgment hearing had not yet been scheduled and the plaintiff could respond and cross‑examine the expert.

Leave was therefore granted to file the affidavit and expert report, subject to confidentiality and further scheduling directions.

The defendant moved for a declaration that service of a statement of claim was invalid where the plaintiff served the defendant's Canadian patent agent rather than serving the foreign defendant abroad under the Hague Convention.

The action sought damages following invalidation of a patent and included a claim under the Patent Regulations enacted pursuant to the Patent Act.

The court interpreted s. 29(2) of the Patent Act broadly, holding that non-resident patent owners who appoint Canadian representatives for service may be served through those representatives for proceedings arising under the Act or its regulatory regime.

The presence of additional common law or statutory claims did not remove the action from the scope of the provision.

The court concluded that domestic law permitted service in Canada and therefore the Hague Convention was not engaged.

The plaintiff sought leave under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure to issue a certificate of pending litigation over a Toronto property arising from a dispute in a real estate redevelopment venture.

The parties had entered several agreements to jointly purchase, redevelop, and sell residential properties with profits shared equally.

Although the court found there was a triable issue as to whether the plaintiff had an interest in land based on the joint venture arrangement, other equitable factors weighed against granting the CPL.

The property was not unique, the claim could be adequately compensated by damages, and substantial funds from a mortgage discharge were already held in trust to secure potential claims.

Balancing the equities and considering the availability of alternative remedies, the court declined to grant leave to issue the CPL.

Following a successful motion compelling the plaintiff to attend a second defence psychiatric examination under the Rules of Civil Procedure and the Courts of Justice Act, the court determined the appropriate costs award.

The moving parties sought partial indemnity costs exceeding $11,000, while the responding party proposed a substantially lower amount.

Applying the proportionality principle and the factors in Rule 57.01, the court held that the moving parties were entitled to costs but that the time claimed for preparation was excessive.

The court fixed costs in a reduced lump sum amount as fair and reasonable in the circumstances.

The plaintiff's wrongful dismissal action was subject to a status hearing to show cause why it should not be dismissed for delay under former Rule 48.14(13).

The plaintiff explained the delay was due to working abroad in remote locations and experiencing health issues.

The court accepted the explanation and found the defendants would suffer no non-compensable prejudice, as the delay was not particularly lengthy and the defendants had not advanced the claim themselves.

The action was allowed to continue.

Following dismissal of a motion seeking leave to issue a certificate of pending litigation (CPL), the successful party sought costs on a full indemnity basis.

The court considered the discretionary framework for costs under the Courts of Justice Act and the Rules of Civil Procedure, including the principles of proportionality and fairness.

While the successful party argued the opposing party unnecessarily lengthened the motion and improperly registered cautions on title, the court found no reprehensible conduct justifying elevated costs.

The requested costs were also found to be excessive for the nature of the motion.

Costs were therefore fixed at a reduced amount on a partial indemnity basis.

In a personal injury action arising from a motor vehicle accident where liability was admitted, the defendants moved for an order compelling the plaintiff to attend a second defence psychiatric examination under s. 105 of the Courts of Justice Act and Rule 33 of the Rules of Civil Procedure.

The plaintiff opposed the request, arguing the defendants had already conducted an examination years earlier.

The court applied the factors from Bonello v. Taylor and found that trial fairness warranted a further examination, particularly given that the original defence report would be more than five years old at trial, new expert reports had been served by the plaintiff, and evidence suggested the plaintiff’s psychological condition may have deteriorated.

The court concluded that a current psychiatric assessment was necessary to permit the defence to fairly respond to the plaintiff’s expert evidence and to assist the trier of fact.

The motion was granted and the plaintiff was ordered to attend the psychiatric examination.

Following a successful motion compelling the plaintiff to attend defence orthopaedic and psychiatric examinations, the court determined the appropriate costs award.

The defendant sought partial indemnity costs and disbursements, while the plaintiffs argued no costs or costs in the cause due to alleged procedural unfairness and conflicting authorities regarding leave requirements.

Applying the discretionary framework under the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that the defendant was the successful party and entitled to costs.

The court found the requested legal fees reasonable but declined to award a disbursement related to a cancelled defence medical appointment.

Costs were fixed at $5,000 inclusive of taxes and disbursements, payable within 30 days.

The plaintiff brought a motion to set aside a registrar's order dismissing the action for delay.

The action, which involved a claim for damages for false allegations of criminal behaviour, was dismissed after the plaintiff failed to meet a timetable deadline to set the action down for trial.

The Master applied the test for setting aside an administrative dismissal, finding that the delay was adequately explained, the deadline was missed due to inadvertence, the motion was brought promptly, and the plaintiff rebutted the presumption of prejudice.

The motion was granted and the dismissal order was set aside.

The plaintiff brought a motion to amend its statement of claim to add three new defendants and a new cause of action for conspiracy to injure, nearly four years after the incident.

The defendants opposed, arguing the claims were statute-barred.

The court granted the motion, finding the plaintiff met the low evidentiary burden to show reasonable diligence in discovering the alleged conspiracy, which is secretive by nature.

The court also found the proposed pleading contained all necessary elements for a conspiracy claim.

The defendants were granted leave to plead a limitations defence.

The plaintiff moved for leave to issue a certificate of pending litigation over a residential redevelopment property, alleging an oral joint venture agreement granting him an interest in the land.

The defendant denied the existence of any joint venture and argued the plaintiff acted only as a real estate agent.

The court found the plaintiff met the low threshold of establishing a triable issue regarding an interest in land.

However, after considering additional equitable factors—including lack of property uniqueness, the investment nature of the purchase, the availability and ease of calculating damages, and the existence of an alternative damages claim—the court concluded a CPL was not appropriate.

The balance of convenience did not favour registration, and the motion was dismissed.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside an administrative dismissal order for abandonment and sought leave to amend the statement of claim to add the plaintiff’s insurer as a defendant under uninsured motorist coverage.

The court applied the factors governing relief from administrative dismissal, including the explanation for delay, inadvertence, delay in bringing the motion, and prejudice to the defendants.

Although the motion to set aside was not brought promptly, the court found the delay was not inordinate, the missed deadline resulted from inadvertence, and no actual prejudice was demonstrated.

The court emphasized the preference for resolving disputes on their merits.

The dismissal order was set aside and the plaintiff was granted leave to amend the claim to add the insurer.