Master Ronald Dash

The defendants sought costs following their substantially successful motion to compel the production of documents over which the plaintiff claimed privilege.

The plaintiff argued that costs should be in the cause or that no costs should be awarded due to divided success.

The court found that the defendants were overwhelmingly successful based on the number of documents ordered produced and the issues resolved.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $30,000 on a partial indemnity scale, payable within 30 days.

The plaintiffs successfully resisted a motion brought by the defendant to the counterclaim's insurer to remove the plaintiffs' lawyer for an alleged conflict of interest.

The plaintiffs sought costs on a substantial indemnity scale against the insurer and the insurer's lawyer personally.

The court declined to award costs against the lawyer personally, finding his conduct was not unreasonable or derelict.

However, the court awarded substantial indemnity costs directly against the non-party insurer, finding the motion was unnecessary, speculative, and caused needless expense to the plaintiff in preserving her choice of counsel.

Costs were fixed at $13,400 net of setoffs.

The defendants brought a motion to compel production of documents from the file of the plaintiff's subrogating insurer and to examine a representative of the insurer.

The plaintiff claimed solicitor-client, litigation, and settlement privilege over the documents.

The court reviewed the documents and ordered production of those where the dominant purpose was claims assessment rather than litigation defence, and those where the settlement privilege exception applied.

The court also ordered the examination of the insurer's representative, finding the action was brought for the insurer's immediate benefit.

This motion concerned whether a lawyer could represent both a driver and a passenger in a motor vehicle accident claim when the defendants counterclaimed against the driver for contribution to the passenger's damages.

The applicant, Louis Gordon Sabean (as defendant to the counterclaim, through his insurer's counsel), sought to remove Jeffrey Strype as counsel for Sian Patricia Sabean (the passenger).

The court found no disqualifying conflict of interest, noting the common interest of the plaintiffs in establishing the defendants' liability, the waiver of conflict by the clients, and the speculative nature of the alleged risks of impaired representation or confidential information disclosure.

The motion was dismissed.

The defendant Gregory Judd moved for substantial indemnity costs after the plaintiff Enerworks Inc. discontinued its action against him.

The action alleged fraud, conspiracy, and fraudulent transfers of assets.

The court found that Enerworks Inc. commenced and continued the action against Judd without sufficient credible evidence to support the serious allegations of fraud, deeming the allegations reckless.

Consequently, the court awarded Judd costs on a substantial indemnity basis, fixed at $68,000, finding that it was in the interests of justice given the unfounded nature of the claims and the potential damage to Judd's reputation as a professional accountant.

The defendant/plaintiff Nicol moved for an order to try four actions together, or alternatively, to try two specific actions together and waive the deemed undertaking rule.

The court dismissed the primary request for joinder of all four actions, finding the issues between the property damage claims and the service provider claims distinct and that the matter was largely res judicata.

However, the court granted the alternative relief, ordering the two property damage actions (McColgan and Piccolotto) to be tried together, and the service provider actions to be severed and tried separately.

The court also waived the deemed undertaking rule.

Costs were awarded against Nicol on a substantial indemnity basis for McColgan and Piccolotto, and partial indemnity for the Service Providers, due to Nicol's unsuccessful primary motion and refusal of reasonable settlement offers.

The plaintiffs brought a motion to strike the statement of defence of the defendant dentist for failure to comply with a production order and for obstruction of production and discovery by his former solicitors.

The court found that the plaintiffs and the co-defendant had conflated the production obligations of the defendant with those of his former law firm, which had previously represented both defendants on a joint retainer.

The court held that the defendant had belatedly complied with his obligations and could not be held responsible for the failings of the former law firm.

The motion to strike the defence was dismissed.

The plaintiffs sought leave to amend their statement of claim to incorporate findings from a Mutual Fund Dealers Association (MFDA) disciplinary panel concerning a salesperson, David Karas, whose conduct was central to the plaintiffs' indemnity claim against the defendant.

The defendant opposed the amendments, arguing irrelevance, improper pleading of similar fact evidence, and inadmissibility of the panel's findings.

The Master found the proposed amendments relevant and determined they did not improperly plead similar fact evidence.

The Master allowed most of the amendments, permitting the pleading of the MFDA panel's conclusions regarding specific rule breaches and the imposed penalty, but disallowed the pleading of the panel's "reasons" or characterizations of Karas's conduct.

The decision clarified that the admissibility and weight of such regulatory findings in the civil action would be determined by the trial judge.

The plaintiff moved to amend its statement of claim to add its principal as a plaintiff and the lawyer for the principal's ex-wife as a defendant, alleging conversion of property and actions that devalued the plaintiff's lodge business during a receivership.

The court allowed the amendments relating to conversion, finding they raised a tenable cause of action and were not clearly statute-barred, as discoverability was a triable issue.

However, the court dismissed the proposed amendment claiming damages for the devaluation of the lodge, finding it failed to plead a tenable cause of action for intentional interference with economic relations, conspiracy, or inducing breach of fiduciary duty, but granted leave to move again with fresh amendments.

The plaintiff moved to remove the defendant's lawyer of record on the basis that the lawyer would be a witness to material facts at trial and that her communications formed the factual foundation for the plaintiff's wrongful dismissal and human rights claims.

The court found that while it was not certain the lawyer would be called as a witness, she was so closely connected to the material facts underlying the action that she was compromised as an advocate.

The lawyer's own words were at the heart of the dispute, putting her credibility in issue and creating a conflict between her role as counsel and participant.

The motion to remove counsel was granted.

The plaintiff moved to set aside a registrar's order dismissing his professional negligence action for delay and sought leave to amend his statement of claim to add his former lawyers as defendants.

The court dismissed the motion to set aside the dismissal, finding the plaintiff made a deliberate decision not to pursue the litigation and failed to rebut the presumption of prejudice.

The court also dismissed the motion to add the former lawyers as defendants, concluding that the proposed claims were either statute-barred under the Limitations Act, 2002 or legally untenable.

The plaintiff moved to set aside a registrar's order dismissing his solicitor negligence action for delay and sought leave to amend his statement of claim to add his former lawyer and law firm as defendants.

The court dismissed the motion to set aside the dismissal, finding the plaintiff failed to adequately explain the delay, failed to prove inadvertence, and failed to rebut the presumption of prejudice to the defendant.

The court also dismissed the motion to add the former lawyer as a defendant, concluding that the proposed claims were either untenable or barred by the two-year limitation period under the Limitations Act, 2002.

Following the discontinuance of an environmental contamination action seeking $20 million in damages, the defendant successfully obtained costs of the action.

The present endorsement addressed the costs of the defendant’s motion for those costs.

The court found the defendant reasonably brought the motion because the plaintiffs did not admit entitlement to costs until late in the proceedings, though most of the motion work related to the disputed quantum rather than entitlement.

As neither party achieved success on the principal issue of quantum, the court declined to award costs for that portion of the motion.

Limited costs were awarded for the entitlement issue caused by the plaintiffs’ delayed admission.

The defendant moved to dismiss the plaintiff's 15-year-old personal injury action for delay and breach of court orders, primarily stemming from the plaintiff's failure to complete defence medical examinations.

The plaintiff, who had been self-represented for a significant period, refused to be examined by male doctors due to severe anxiety and later had conflicts with female examining doctors.

The court found the delay was inordinate but excusable given the circumstances, and that the defendant suffered no actual prejudice.

The motion to dismiss was denied, but the court ordered the plaintiff to attend a defence medical examination with a female specialist under strict conditions, including audio recording, warning that failure to comply would result in dismissal.

The defendant moved to dismiss the plaintiff's 15-year-old personal injury action for delay and breach of court orders, primarily due to the plaintiff's failure to complete defence medical examinations.

The plaintiff, who had been self-represented for a significant period, refused to be examined by male doctors due to severe anxiety stemming from a past assault, and later had confrontational interactions with female examiners.

The Master found the delay was inordinate but excusable under the circumstances, and that the defendant suffered no actual prejudice.

The motion to dismiss was denied, but the Master imposed strict terms for a final defence medical examination, including that it be conducted by a female specialist and be audio recorded.

The defendants moved to dismiss a civil action alleging assault and false arrest by a police officer on the basis of delay under Rule 24.01(1)(c) of the Rules of Civil Procedure and for breach of a prior court order.

The action had been commenced more than fourteen years earlier and had seen virtually no progress for almost a decade following examinations for discovery, with numerous undertakings remaining unanswered and the plaintiff failing to comply with an order requiring her to appoint counsel or file a notice of intention to act in person.

The court held that the delay was inordinate and inexcusable and that the plaintiff had failed to rebut the presumption of prejudice arising from the lengthy passage of time.

Although the delay was not found to be intentional and contumelious, the circumstances created a substantial risk that a fair trial would no longer be possible.

The action was dismissed for delay, with costs awarded to the defendants.

This was a costs endorsement following dismissal of a defendants' security for costs motion in a defamation action under s. 12 of the Libel and Slander Act.

The court held the successful plaintiff was entitled to costs, rejected substantial indemnity, and fixed costs on a partial indemnity basis after applying the Rule 57.01(1) factors, including the motion's significant complexity, the amount at stake, and the volume of the record.

Although the plaintiff had mortgaged her property to her lawyers, the court held that circumstance did not disentitle her to costs, but it justified deferring payment until after trial.

Costs were ordered in the amount of $50,000 inclusive of disbursements and HST, payable to the plaintiff in any event of the cause.

This costs endorsement addressed two prior motions in a commercial action involving confidential technology documents and discovery management.

The court held that the defendants were entirely successful on their protective order motion and awarded them partial indemnity costs, while reducing the amount sought because the use of four lawyers created some duplication.

On the plaintiffs' motion concerning a discovery plan, further and better affidavit of documents, and case management, the court found mixed success because some relief advancing the litigation was granted but core discovery-plan relief was refused as premature.

Costs of that motion were ordered to be in the cause.

The defendants in a libel action brought a motion for security for costs under section 12 of the Libel and Slander Act after the trial judge passed away before rendering a decision.

The court held that the test under section 12 is conjunctive, requiring the defendants to prove that the plaintiff lacks sufficient assets, that the defendants have a good defence on the merits, and that the statements were made in good faith.

Although the plaintiff lacked sufficient assets, the defendants failed to establish that their defences of justification, fair comment, or responsible journalism were more likely than not to succeed, or that the statements were made in good faith.

The motion for security for costs was dismissed.

The plaintiffs moved for a discovery plan, further documentary production, and case management in a commercial dispute involving confidentiality obligations and alleged independent creation of a product.

The court held that a contested discovery plan should not be imposed before pleadings and related procedural motions were finalized, and emphasized that parties must first make meaningful efforts to agree on a plan under Rule 29.1.03.

The court gave procedural guidance on motions required to compel discovery from non-parties or additional witnesses, ordered preservation and third-party document-request steps, and directed that no examinations for discovery proceed until a plan was agreed or ordered.

Given the complexity of the disputes and the parties' inability to cooperate, the action was assigned to case management.