Associate Judge Robert I. Frank

The defendant in a long-term disability action brought a motion for an order requiring the plaintiff to attend a psychiatric Independent Medical Evaluation (IME).

The plaintiff opposed, arguing she had already attended a pre-litigation psychiatric assessment with a different doctor.

The court held that the pre-litigation assessment did not constitute a first examination under section 105 of the Courts of Justice Act, giving the defendant a prima facie right to the requested IME.

Alternatively, the court found sufficient evidence of a change in circumstances to warrant a further examination.

The motion was granted.

The defendant, a bank incorporated in Hong Kong, brought a motion to stay the plaintiffs' action for lack of jurisdiction or, alternatively, on the basis of forum non conveniens.

The plaintiffs, an Ontario resident and a Panamanian company, sued the defendant over funds held in Hong Kong accounts that were not transferred as instructed.

The court found it had jurisdiction simpliciter because the alleged tort of negligent misrepresentation occurred in Ontario.

However, the court exercised its discretion to stay the action, concluding that Hong Kong was the clearly more appropriate forum given the location of key witnesses, the governing law of the banking contracts, and the location of the funds.

The individual defendant, who is one of two shareholders and directors of the corporate defendant, brought a motion for leave to represent the corporation under Rule 15.01(2) of the Rules of Civil Procedure.

The plaintiff, who is the other shareholder and director, opposed the motion.

The court applied the Extend-A-Call factors and found that the corporation lacked the financial resources to retain counsel, and that the individual defendant was capable of comprehending the issues and advocating for the corporation.

The court granted the motion, subject to the condition that the individual defendant obtain authorization from the corporation to represent it.

The plaintiff brought a motion for leave to amend its statement of claim to add allegations of revenue misrepresentation related to a share purchase agreement.

The defendants opposed, arguing the amendments asserted a new cause of action after the expiry of the limitation period and were barred by a survival clause in the agreement.

The court granted the motion, finding that while the original pleading lacked the factual matrix for the new claim, the defendants had elicited the necessary material facts during discovery, meaning it was not a new cause of action.

The court also held that the survival clause did not bar the claim as it only required the claim to arise within two years, not that notice be given.

This decision provides supplementary reasons to a prior motion to strike pleadings in a medical malpractice case.

The court ruled on previously unaddressed paragraphs and clarified others in the Statement of Claim and Proposed Amended Statement of Claim.

It addressed allegations related to a doctor's deficient skills, failure to disclose, and the hospital's knowledge of complaints.

The court struck certain pleadings that improperly referenced unidentified prior conduct without sufficient material facts, while upholding others related to breach of fiduciary duty and punitive damages where sufficient material facts were pleaded.

The plaintiff, Sema Cetin, brought a motion to lift a stay of proceedings in her professional negligence action against her former lawyers, Thomas Percival, Jason Lam, and Krylov and Company.

The stay was initially granted by consent, pending the 'outcome of the trial' of a related motor vehicle action.

The motor vehicle action subsequently settled, leading the defendants to argue the stay was permanent as no trial occurred.

The court interpreted the consent order broadly, considering the surrounding circumstances and correspondence between counsel, finding that 'outcome' included settlement.

The court also applied the 'interests of justice' test, concluding that lifting the stay was necessary to allow the plaintiff's professional negligence claim to be determined on its merits, despite the defendants' arguments regarding prejudice and the extinguishment of claims.

The Third Party, Toronto Homes and Building Realty Inc., brought a motion to dismiss the third party claim against it due to the Defendant, Mohammad Sobhi's, failure to comply with a prior order for security for costs ($60,000) and a costs order ($7,300).

The Defendant sought an adjournment and leave to file late affidavits, arguing impecuniosity and proposing to use equity from a property (contingent on lifting a certificate of pending litigation) as security.

The court denied the Defendant's requests, finding no compelling reason for non-compliance and that the proposed alternative was a speculative collateral attack on the prior order.

The motion was granted, dismissing the third party claim, and costs were awarded to the Third Party.

The defendant, Metropolitan Toronto Condominium Corporation No. 1255 (MTCC 1255), brought a motion to stay an action commenced by 23 St. Thomas Inc. and Metropolitan Toronto Condominium Corporation No. 1271 (MTCC 1271) in favour of mandatory arbitration under the Condominium Act, 1998.

The court found that the pith and substance of MTCC 1271's claims related to the interpretation and application of the Reciprocal Agreement and Indemnity Agreement, making them arbitrable.

Consequently, MTCC 1271's claims were stayed.

However, the court declined to stay 23 St. Thomas Inc.'s claims, as it was not a party to the agreements and there was insufficient evidence to pierce the corporate veil.

The motion was granted in part, with an arbitrator appointed for the arbitrable claims.

The applicant brought an ex parte motion seeking to appoint her husband as her litigation guardian and for leave to issue a certificate of pending litigation against a preconstruction condominium property.

The court granted the appointment of the litigation guardian as the applicant was incapable following a serious traffic accident.

However, the court dismissed the motion for a certificate of pending litigation.

Although there was a triable issue regarding the termination of the agreement of purchase and sale, the court applied the Dhunna factors and found that the equities favoured the respondent, noting the property was not unique, damages would be an adequate remedy, and there was another willing purchaser whose transaction was scheduled to close imminently.

The defendants brought a motion seeking production of original diagnostic imaging records, reattendance of the plaintiffs for discovery, and a further defence medical examination of the plaintiff by an orthopaedic surgeon.

The plaintiffs opposed, arguing the requests were disproportionate and that the defendants were only entitled to one physical examination.

The court granted the motion, finding the diagnostic imaging relevant and its production justified.

The court also ordered reattendance for discovery to answer follow-up questions.

Finally, the court ordered the further defence medical examination, limited to assessing the cause and prognosis of the plaintiff's labral tear, as the first examining physiatrist lacked the necessary expertise.

The defendants brought motions to dismiss the plaintiff's action for delay and for failure to comply with multiple court orders requiring her to answer undertakings given at her examination for discovery.

The plaintiff, a self-represented litigant, had failed to answer undertakings for nearly five years and breached several 'last chance' orders.

The court found the delay to be inordinate, inexcusable, and prejudicial to the defendants.

The court also found that the plaintiff's repeated failure to comply with interlocutory orders warranted dismissal.

The action was dismissed.

The defendant/plaintiff by counterclaim, Dr. Eric Owens, brought a motion seeking leave to amend his amended statement of defence and counterclaim to include claims for negligence, negligent misrepresentation, and increased damages of $8 million.

The plaintiff/defendant by counterclaim, Navigator Limited, opposed, arguing that the proposed amendments introduced new causes of action after the expiry of the applicable limitation period and that the increased damages claim was not tenable in law due to contractual limitation clauses.

The court granted Dr. Owens leave to amend, finding that the proposed claims arose from the same factual matrix as the original pleadings and were clarifications or alternative remedies, not new causes of action.

The court also determined that the applicability and effect of the contractual limitation of liability clauses should be assessed at a hearing on the merits, not at the pleadings stage.

The moving party defendants brought a motion for an order requiring the plaintiff to provide particulars of its allegations of misrepresentation and intent, and to produce documents for inspection.

The plaintiff opposed, arguing the defendants already had the information and documents.

The court granted the motion in part, finding that the statement of claim did not satisfy the elevated level of particularity required under Rule 25.06(8) for pleadings of misrepresentation.

The court ordered the plaintiff to provide certain particulars and to produce the referenced documents for inspection.

The court dismissed the defendants' request to set a timetable for a potential motion to remove their counsel, finding it premature.

The court also granted the plaintiff's motion to validate service on one of the defendants.

In a multi-party motor vehicle accident action, the plaintiffs and two of the defendants entered into a Pierringer agreement.

The non-settling defendants brought a motion to compel production of the agreement, redacted only as to quantum.

The settling parties argued that only the 'essential terms' needed to be disclosed and that the agreement itself was protected by settlement privilege.

The court granted the motion, finding that the non-settling defendants faced potential procedural prejudice and that the need to protect them outweighed the public interest in maintaining settlement privilege over the non-financial terms of the agreement.

The defendants brought a second motion to discharge a certificate of pending litigation (CPL) registered by the plaintiff against a residential property.

The defendants argued that new facts, including the plaintiff's rejection of a 'with prejudice' settlement offer and new evidence of financial hardship, justified the discharge.

The court dismissed the motion, finding that the defendants were improperly attempting to relitigate issues already decided on the first discharge motion and appeal.

The court held that the new evidence did not meet the exceptional circumstances test to overcome res judicata, and the equitable factors continued to favour maintaining the CPL.

The defendant physician in a medical negligence action brought a motion to strike paragraphs from the plaintiff's Statement of Claim.

The impugned paragraphs alleged prior negligence, discipline proceedings, and breach of fiduciary duty.

The court struck the allegations regarding discipline proceedings and unparticularized prior negligence, finding they lacked probative value and violated the rule against similar fact evidence.

However, the court declined to strike the breach of fiduciary duty claims, finding sufficient material facts were pleaded regarding the physician's alleged failure to disclose his high complication rates and deficient skills.

The plaintiff brought a motion to transfer his action for long-term disability benefits to the Small Claims Court or, alternatively, to continue it under the Rule 76 Simplified Procedure.

The defendant opposed the motion, arguing prejudice due to the loss of its right to a jury trial and the advanced stage of the litigation.

The court dismissed the motion, finding that continuing under Rule 76 would improperly require striking a pre-2020 jury notice, which an Associate Justice lacks jurisdiction to do.

Furthermore, transferring to Small Claims Court at this late stage, after significant discovery and without compensating the defendant for costs thrown away, would be unfair and contrary to the interests of justice.

The plaintiffs brought a motion seeking leave to issue a certificate of pending litigation against a property they claimed to beneficially own, despite the defendants being the registered owners.

The court found a triable issue regarding the plaintiffs' interest in the property due to conflicting evidence about the nature of their payments and agreements.

However, applying the Dhunna factors, the court concluded the equities favoured the defendants because the property was not unique and damages would be an adequate remedy.

The motion for a certificate of pending litigation was dismissed, but the court imposed conditions preventing the defendants from dissipating the property's equity pending trial.

The third party, a court-appointed receiver, brought a motion to stay a third party claim commenced against it by the defendants.

The defendants sought contribution and indemnity, as well as unpaid professional fees.

The court granted the motion and stayed the third party claim, finding that the defendants failed to obtain leave of the court as required by the receivership order.

The court also found that the fee claim was barred by the limitation of liability provision in the receivership order and constituted an abuse of process because it was identical to a previous action that had been dismissed for delay.

The plaintiff brought a motion for leave to amend the statement of claim to correct an alleged misnomer, seeking to substitute his mother as the plaintiff after the limitation period had expired.

A previous motion to add the mother as a plaintiff had been dismissed.

The court dismissed the misnomer motion, finding that the original naming of the plaintiff was intentional and tactical, not an error.

Furthermore, the court held that the motion constituted an abuse of process because it relied on evidence that contradicted the plaintiff's position on the prior motion.