Robert I. Frank

The plaintiffs moved under rule 60.12 of the Rules of Civil Procedure to strike the defendants’ statement of defence for failing to comply with a prior disclosure order requiring unfettered access to financial and corporate records relevant to an accounting dispute arising from a failed cross‑border business venture.

The court found the defendants had not complied with the disclosure order and rejected their explanation that the plaintiffs had stolen the records.

The evidence demonstrated deliberate and ongoing non-compliance with multiple court orders and inadequate attempts to obtain documents within the defendants’ control.

Despite serious misconduct, the court declined to strike the defence immediately, emphasizing the preference for resolving disputes on their merits.

The defendants were instead ordered to conduct further searches and obtain records from all possible sources under strict timelines, failing which the plaintiffs could renew the motion to strike without notice.

The plaintiff appealed a Master's decision refusing leave to vacate a trial record after the action had been set down for trial.

The trial record had been filed to avoid dismissal following a status notice, but doing so prevented further discovery under rule 48.04(1) of the Rules of Civil Procedure.

The Master held that leave could only be granted if there was a substantial or unexpected change in circumstances or if substantive rights were affected.

The court held that the Master fettered his discretion by applying the test too narrowly.

Even without a substantial change in circumstances, leave may be granted where the interests of justice require it, particularly where the plaintiff would otherwise suffer significant prejudice in preparing for trial.

A motion was brought to determine whether an insurer or the Motor Vehicle Accident Claims Fund was required to respond to a pedestrian’s tort claim arising from a bus accident where the vehicle was not listed under the insured’s policy at the time of the accident.

Although the insurer had paid statutory accident benefits under the priority rules in O. Reg. 283/95, the issue was whether that payment rendered the claimant an insured entitled to uninsured motorist coverage under the Insurance Act.

The court held that the insurer’s obligation to pay accident benefits arose solely from the statutory priority scheme and not from an existing policy covering the accident.

Entitlement to accident benefits alone did not create insured status for uninsured motorist coverage.

The plaintiff was therefore not entitled to uninsured motorist coverage from the insurer.