Robert A. Muir

Following motions granting leave to amend statements of claim under Rules 5.04 and 26.01 of the Rules of Civil Procedure, the court addressed costs.

The plaintiffs sought substantial indemnity costs, arguing complete success and alleging procedural misconduct including late responding materials and a property transfer during the motion.

The defendants argued that the amendments constituted an indulgence and that their opposition was reasonable given the plaintiffs’ delay in bringing the motions.

The court found that the plaintiffs had delayed unnecessarily, creating additional discoverability issues that justified the defendants’ opposition.

No order for costs was made.

The defendant insurer moved under Rule 6.01 of the Rules of Civil Procedure for an order that a simplified procedure action against the insurer and a separate tort action arising from the same motor vehicle accident be tried together or sequentially.

Although both proceedings arose from the same collision and involved overlapping liability issues, the court held that consolidation was not appropriate.

The insurance action involved a discrete fault determination issue and was ready for trial, while the tort action was significantly more complex and at an early procedural stage.

The court concluded that trying the actions together would cause delay and offer little efficiency benefit.

The motion was dismissed and costs were awarded to the plaintiff.

The plaintiff brought a refusals motion seeking answers to numerous questions refused on examinations conducted in connection with a pending motion for particulars in a professional negligence and breach of contract action against former lawyers.

The plaintiff argued that the defendants’ affidavit asserting lack of knowledge regarding certain particulars waived solicitor-client privilege over the defendants’ files and related information.

The court held that any waiver of privilege was limited to the knowledge addressed in the affidavit at the time it was sworn and did not extend to the entirety of counsel’s files.

The requested questions and document production exceeded the scope of the limited waiver and intruded upon solicitor-client privilege.

The court dismissed the refusals motion and confirmed the propriety of the defendants’ redactions and document production.

The plaintiff mortgagor sought relief from forfeiture and challenged the accounting and enforcement of seven mortgages held by the defendants.

A reference was ordered to determine whether defaults existed at the time notices of sale were issued and to calculate the amounts owing.

The court found technical defaults existed for all seven mortgages due to factors including unpaid property taxes, lack of insurance, and missed payments.

However, several charges claimed by the mortgagee—including legal fees and certain administrative charges—were disallowed due to insufficient evidentiary support.

The court recalculated the mortgage accounts and determined the correct balances, finding both overpayments and underpayments across the different properties.

The plaintiff brought motions under Rules 5.04 and 26.01 of the Rules of Civil Procedure seeking leave to amend statements of claim in two related actions.

In the 1997 action, the proposed amendments clarified allegations relating to enforcement of a foreign arbitration award.

The court held that the amendments did not introduce a new cause of action but merely provided further particulars and clarification of facts already pleaded, and therefore granted leave to amend.

In the 1998 action, the plaintiff sought to add allegations that a mortgage registered against the defendant’s property was fraudulent and void.

The court found these amendments introduced new causes of action long after the limitation period had expired and refused leave.

The defendants brought a motion for security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure on the basis that the corporate plaintiff had insufficient assets in Ontario to satisfy a potential costs award.

Evidence before the court showed that the plaintiff had outstanding judgments exceeding $1,000,000 and had filed no responding evidence demonstrating available assets.

The court held that once the defendants established the Rule 56.01(1)(d) threshold, the burden shifted to the plaintiff to prove sufficient assets, demonstrate impecuniosity, or show that its claim had a strong likelihood of success.

The plaintiff failed to meet any of these evidentiary burdens.

The court ordered the plaintiff to post $15,000 as security for costs and awarded the defendants partial indemnity costs of the motion.

The defendant moved for an order requiring the plaintiff to attend a neuropsychological defence medical examination in a motor vehicle accident action.

The plaintiff argued that the defendant required leave under Rule 48.04(1) of the Rules of Civil Procedure because the matter had already been certified for trial.

The court granted leave, finding that defence counsel’s mistaken understanding regarding the plaintiff’s willingness to attend the examination constituted a substantial or unexpected change in circumstances.

Applying the principles governing additional defence medical examinations, the court held that the examination was necessary to allow the defence physiatrist to finalize his opinion regarding the cause of the plaintiff’s cognitive impairments, particularly in light of a prior head injury and the plaintiff’s expert report.

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

Self-represented plaintiffs brought a motion for leave to amend their statement of claim in litigation concerning alleged improper property tax arrears, tax increases, and related municipal conduct.

The defendant municipality opposed several amendments, arguing that some referred to settlement discussions, were legally untenable, or improperly pleaded evidence or argument.

The court applied Rule 26.01 of the Rules of Civil Procedure, emphasizing the presumptive right to amend pleadings unless non-compensable prejudice would result.

While certain amendments were refused—particularly those referring to settlement privilege, improperly pleaded Charter claims, irrelevant commentary, and legally untenable allegations—the majority of amendments were permitted with modifications, recognizing the latitude afforded to self-represented litigants.

The defendant’s cross-motion seeking case management was adjourned without a date.

The defendant brought a refusals motion seeking answers to numerous questions refused during the cross‑examination of the plaintiff’s witness in connection with pending motions concerning the Business Names Act.

The underlying dispute involved a claim for payment for imported food products and a defence alleging the action was a nullity because the plaintiff’s business name registration had expired.

The court applied principles governing the scope of cross‑examination on motions and the proportionality requirement under the Rules of Civil Procedure.

It held that most of the requested information constituted an overly broad fishing expedition unrelated or disproportionate to the issues relevant to leave under s. 7(2) of the Business Names Act.

Limited additional production relating to responsibility for corporate filings, business name registration documents, certain annual returns, and a specific revenue issue was ordered, while most refusals were upheld.

Following a motion concerning implementation of a discovery plan and production of documents, the court addressed the issue of costs between the plaintiff and one defendant insurer after the other defendants resolved costs by agreement.

The plaintiff sought partial indemnity costs, arguing substantial success, while the insurer contended it was the successful party and sought its own costs.

The court found that neither party was measurably more successful overall.

Although the insurer prevailed on the principal production issues, the motion itself was necessary to resolve outstanding discovery matters.

The court concluded that fairness required no order as to costs between the plaintiff and the insurer.

The defendants brought a motion seeking the master's recusal from hearing their earlier motion to dismiss the action for delay and requesting that the dismissal motion be heard anew by another master.

The defendants argued procedural unfairness and denial of natural justice because they were unable to respond to a letter sent by opposing counsel to the court opposing further submissions after the dismissal motion had been argued.

The court found that the letter contained no substantive argument on the jurisdiction issue and that the refusal to allow additional submissions had already been fully explained in earlier reasons.

The court held that the defendants had relied solely on Rules 24 and 48 of the Rules of Civil Procedure and could not recast the legal basis of their motion after argument had concluded.

The recusal motion was dismissed and costs were awarded to the plaintiff.

Following an interlocutory motion concerning amendments to pleadings and document production, the court addressed costs.

The moving party had obtained leave to amend its statement of claim and partial relief for additional document production but was unsuccessful on a privilege issue that dominated the motion.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that costs must be fair and reasonable in light of partial success and the relative importance of the issues.

The responding parties were found to have been successful on the principal issue argued, though their claimed costs and request for substantial indemnity were excessive.

Partial indemnity costs of $2,500 were awarded against the moving party, with no costs order involving another responding party who played only a minor role.

In a personal injury action, the defendant brought a motion seeking production of approximately 1,100 photographs located on the private portion of the plaintiff’s Facebook account, arguing they were relevant to the plaintiff’s alleged loss of enjoyment of life and damages.

The court held that the stricter relevance test governs documentary discovery and rejected reliance on a mere “semblance of relevance.” After reviewing a sample of the photographs and considering evidence that none depicted significant physical activity inconsistent with the plaintiff’s claims, the court concluded the request was overly broad and amounted to a fishing expedition.

The photographs were not relevant to any issue in the action and production was refused.

Costs were awarded to the plaintiffs.

The plaintiff subcontractor brought a motion seeking implementation of a discovery plan and further production of documents in an action arising from unpaid work on a construction project.

The claim involved alleged entitlement to payment under a Labour and Material Payment Bond and claims of negligence, misrepresentation, and breach of duty to disclose against the owner, its supervisor, and the surety.

The court applied the relevance and proportionality principles under Rules 30.02 and 29.2 of the Rules of Civil Procedure to determine the scope of documentary production.

Certain categories of documents relating to the issuance of bonds, other creditors, and general practices under the Construction Lien Act were found irrelevant and need not be produced, while documents relating to payments to the contractor, certain daily project reports, and materials relevant to the surety’s prejudice defence were ordered produced.

Claims of solicitor‑client privilege over redacted portions of internal communications were upheld.

The plaintiffs brought a motion seeking leave to amend their amended statement of claim to add a new defendant and to compel further production of documents from several defendants.

The court granted leave to amend and ordered the corporate defendants to produce bank statements, cancelled cheques, and related financial records relevant to the impugned real estate transactions.

However, the plaintiffs’ request for production of documents contained in the real estate lawyer’s files was refused on the basis of solicitor-client privilege.

The court held that privilege belongs to the clients and is not waived merely because another party places its state of mind in issue.

The fraud exception to privilege was not engaged because a prima facie case of fraud had not yet been established.

The plaintiff brought a motion under Rule 37.14 of the Rules of Civil Procedure to set aside a registrar’s order dismissing the action as abandoned under Rule 48.15 and to extend the time for service of the statement of claim.

The court reviewed the applicable principles governing motions to set aside administrative dismissal orders, including the Reid factors addressing explanation for delay, inadvertence, promptness of the motion, and prejudice to the defendant.

Although the plaintiff failed to provide satisfactory explanations for significant litigation delay and for the delay in bringing the motion, the court accepted that the missed deadline resulted from inadvertence and found that the plaintiff rebutted the presumption of prejudice despite the expiry of the limitation period.

Given the preference for resolving disputes on their merits and the absence of demonstrated actual prejudice to the defendants, the registrar’s dismissal order was set aside and the time for service extended.

The defendants were awarded costs of the motion.

Following a successful motion for leave to amend a statement of claim under Rule 26.01 of the Rules of Civil Procedure, the court determined the appropriate costs award.

The plaintiffs sought partial indemnity costs of $6,088.25, while the defendant argued the amount was excessive and proposed a lower figure.

The court applied the principle that costs should be fair and reasonable rather than calculated through a strict mathematical approach.

It found that certain claimed amounts, including costs for drafting the amended pleading and the appearance fee, were excessive.

The court fixed partial indemnity costs at $3,745 plus HST and disbursements, payable within 30 days.

The defendants brought a motion to compel answers to undertakings and refusals arising from the plaintiff’s examination for discovery in a commercial dispute alleging breach of contract, breach of fiduciary duty, and misuse of proprietary information following the departure of key employees to a competitor.

The court applied the relevance principles under Rules 31.06 and 30.02 of the Rules of Civil Procedure and the governing jurisprudence on discovery scope.

Some questions and undertakings were ordered answered where they were relevant to damages, business dealings, or the alleged misuse of confidential materials, while others were refused as speculative or unrelated to the pleaded issues.

The court also addressed requests for commercially sensitive documents, ordering production of certain manuals and a DVD containing returned documents subject to a confidentiality agreement but rejecting a “counsel eyes only” restriction.

The plaintiff was ordered to provide outstanding undertakings and answers within 45 days and to attend for a further seven hours of discovery.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure seeking leave to amend the statement of claim arising from a motor vehicle accident to advance an uninsured/underinsured claim against the insurer under her husband’s policy.

The defendants opposed the amendment, arguing that it constituted a new cause of action outside the limitation period and that the doctrine of misnomer did not apply.

The court held that although the misnomer doctrine was not satisfied, the evidence did not establish that the limitation period had expired and the proposed amendments were legally tenable.

The court emphasized that amendments must be granted unless non-compensable prejudice is demonstrated and that the merits of the proposed claim should not be determined on the motion.

Finding no prejudice that could not be compensated by costs or adjournment, the court granted leave to amend.

The defendants moved to dismiss a wrongful dismissal action for delay under Rules 24.01 and 48.14 of the Rules of Civil Procedure.

The court held that none of the criteria under Rule 24.01 were met because the plaintiff had served the claim in time, the defendants had defended the action, and the matter had been set down for trial.

The master also found that he lacked jurisdiction to dismiss the action as an abuse of process outside the rule-based authority relied upon by the defendants.

Even if jurisdiction existed, the court held that the delay was not inordinate or inexcusable given earlier procedural steps and ongoing settlement discussions.

The motion was therefore dismissed and costs awarded to the plaintiff.