Robert Fenn

The plaintiffs sought early production of an investigation report from the defendants to determine whether there was an evidentiary basis to serve two John Doe defendants located in Mexico.

The defendants opposed the request, arguing that the normal discovery process under the Rules of Civil Procedure should be followed.

The court agreed with the defendants, holding that the plaintiffs could not compel early production to avoid the ordinary costs risks of litigation.

The plaintiffs were ordered to serve the remaining defendants within 60 days.

The plaintiffs brought a motion to certify a class action arising from an airline accident involving a flight operated by Fly Jamaica Airways and an aircraft manufactured by Boeing.

The court found that the criteria under section 5 of the Class Proceedings Act were met, including the 'some basis in fact' standard, and certified the action on consent.

The court also granted the plaintiffs' unopposed requests to amend their pleadings to name the pilots and ordered the airline to disclose the passenger list to facilitate notice to the class.

Multiple procedural motions arose in two related aviation negligence actions seeking recovery of insured losses after aircraft hydroplaned and left runways at Ottawa International Airport.

The plaintiffs sought coordinated case management, common discoveries and production, and trial management orders, while the defendants challenged the adequacy of the plaintiffs’ affidavit of documents and disputes arose regarding discovery scheduling.

The court ordered that the actions proceed under joint case management with common discoveries and productions on overlapping issues and removed the deemed undertaking as between the two proceedings.

Leave was granted for extended examinations for discovery due to the limited availability of a key pilot witness.

The court directed further review of the plaintiffs’ affidavit of documents and reserved remaining issues, including sanctions and costs, for later determination.

The appellant, Jetport Inc., appealed a Master's order regarding discovery refusals in three related actions arising from an aviation insurance coverage dispute.

The court allowed the appeal in part, ordering the respondent insurer to answer questions about its course of conduct with other insureds regarding policy exemptions, finding them relevant to the pleadings.

The court also relieved the appellant from answering a question about claims against other third parties, as it was not relevant to mitigation.

However, the court upheld the Master's order requiring the appellant to answer questions about whether its employee sought legal advice from in-house counsel regarding a pilot clause, finding that disclosing the fact of such discussions did not breach solicitor-client privilege.

Following the dismissal of appeals from a master's decision rejecting claims of litigation privilege, the court determined costs.

The responding parties sought partial indemnity costs reflecting significant legal work and extensive materials filed on the appeal.

The court applied the principles under s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable and should reflect the parties’ reasonable expectations.

The court rejected arguments that the large volume of materials filed by the appellant should influence the award and noted that the appellant advanced an arguable legal position without misconduct.

The court awarded $8,000 inclusive of fees, disbursements, and tax to each group of respondents.

Appeal from a Master's order compelling production of communications and answers on discovery despite a claim of litigation privilege.

The appellant argued that emails and a meeting with its insurance broker were created for the dominant purpose of anticipated litigation following denial of insurance coverage for an aircraft crash.

The court held that the appellant failed to establish an evidentiary basis that the dominant purpose of the communications was litigation, noting that the available evidence suggested the discussions focused on advancing the insurance claim rather than preparing for litigation.

The court further held that any common interest litigation privilege between the insured and the broker would have been dissolved once the insured commenced an action against the broker.

The Master's order compelling disclosure was upheld.