Master Ronald Dash

In a commercial dispute alleging misappropriation of confidential information concerning a remote municipal water shut off system, the defendants moved for a protective order governing confidential and highly confidential productions.

The plaintiffs attempted to withdraw prior consent after the defendants designated a very large volume of documents as highly confidential and unavailable to the receiving party.

The court held that consent could not be arbitrarily withdrawn absent evidence of mistake, surprise, or lack of authority, none of which was established on the record.

The protective order was therefore granted, with the court emphasizing that any challenge to particular highly confidential designations had to proceed under the challenge mechanisms built into the order.

In a negligence action arising from a fatal swing‑stage collapse during construction, a defendant moved to compel answers to numerous refusals given by the Ministry of Labour’s representative during discovery.

The Ministry argued that questions relating to inspector training, experience, workload, and inspection decisions were irrelevant because they concerned non‑justiciable core policy decisions involving allocation of governmental resources.

The court held that it was premature on a refusals motion to determine whether the inspection decisions were policy or operational, and that the pleadings alleged negligent inspection and failure to enforce safety obligations under the Occupational Health and Safety Act.

As a result, questions concerning the inspector’s qualifications, workload, sector plans, internal guidelines, prior incidents, and certain post‑incident changes were relevant and proportionate.

Most refusals were ordered answered, some were dismissed, and costs were awarded to the moving defendant.

Following the dismissal of motions to set aside service ex juris and to stay or dismiss an action for lack of jurisdiction, the court determined the appropriate costs award.

The successful party sought substantial partial indemnity costs.

The court reduced the claimed costs to reflect time spent on unsuccessful jurisdictional arguments, unnecessary steps, and work unrelated to the motions.

Costs were ultimately fixed at a reduced amount and apportioned severally among the moving defendants, reflecting their differing roles in the litigation, including the raising of a forum non conveniens argument.

In a medical negligence action arising from a colonoscopy preceding the patient’s death from colorectal cancer, the defendant physicians sought an order under Rule 32.01 of the Rules of Civil Procedure compelling genetic testing of preserved liver tissue to determine whether the cancer was a hereditary form potentially affecting the applicable standard of care.

The court held that excised human tissue archived by a hospital may constitute personal property capable of inspection and testing under Rule 32.01.

However, the motion was dismissed due to significant procedural and evidentiary deficiencies, including lack of evidence from the proposed testing expert, failure to specify the time, place and manner of inspection, and failure to give notice to the hospital and affected physicians.

The court concluded that although the proposed testing might be useful, the requested relief was procedurally improper and unsupported by adequate evidence.

Foreign defendants moved to set aside service ex juris of a statement of claim and to stay or dismiss an Ontario action alleging fraudulent conveyance of wind turbine business assets.

The plaintiff had previously obtained judgment in Ontario for breach of a letter of intent to market turbines in Canada, and alleged the defendants transferred assets to avoid satisfying that judgment.

The court held that a presumptive connecting factor existed because a contract made and breached in Ontario was connected to the dispute regarding the asset transfer.

The defendants failed to rebut the presumption of jurisdiction and did not demonstrate that another forum, such as California, was clearly more appropriate under forum non conveniens principles.

Service ex juris and substituted service were upheld and the action was permitted to proceed in Ontario.

Costs decision following the abandonment of a Rule 45 motion in a class proceeding seeking an order requiring the defendant to pay an alleged fund into court.

The court considered the presumptive rule under Rule 37.09(3) of the Rules of Civil Procedure that a responding party is entitled to costs when a motion is abandoned.

While the plaintiff had a reasonable basis initially to believe the defendant possessed the alleged fund, the court found the motion would have failed because the existence of a fund could not be proven.

The court declined to award substantial indemnity costs due to the absence of reprehensible conduct but granted partial indemnity costs.

The defendant was awarded $30,000 for the abandoned Rule 45 motion and $8,750 for a related refusals motion.

The plaintiffs brought a motion to issue a commission and letter of request to judicial authorities in the State of Washington to compel the former owner of the defendant hockey club, an American resident, to give evidence at trial.

The court found the witness had material evidence regarding corporate negligence and vicarious liability for an on-ice assault.

Finding a gap in the rules regarding compelling foreign witnesses to testify via videoconference at trial, the court applied the rules by analogy and granted the order for a commission and letter of request for the witness to testify live by videoconference or be examined before trial.

The plaintiff corporation brought a motion to amend its statement of claim against the defendant bank to allege that a specific individual was not an authorized signing officer when she conducted fraudulent transactions.

The defendant opposed the motion, arguing it amounted to the withdrawal of an admission, asserted a new cause of action after the limitation period expired, and constituted an abuse of process.

The Master granted the motion, finding the original pleading was not an admission but a background fact, there was a triable issue regarding the discoverability of the new cause of action, and there was no abuse of process.

The defendant brought a motion under Rule 25.11 to strike paragraph 23 of the plaintiff’s reply and defence to counterclaim, arguing the pleading was improper and unsupported.

The court held that the impugned paragraph contained material allegations capable of proof relating to defects in workmanship, materials, and installation services connected to a log home construction system.

The plaintiff was entitled to advance an alternative theory that any alleged defects were caused or contributed to by the defendant rather than by the plaintiff.

At the pleadings stage, striking the allegation would improperly resolve disputed facts.

The motion was dismissed as the defendant failed to show the pleading was clearly futile, frivolous, vexatious, or an abuse of process.

The defendants moved to set aside a noting in default in a tort action arising from a motor vehicle accident after the insurer settled the injured plaintiffs’ claims, obtained an assignment of their cause of action, and sought judgment against the insured defendants for the settlement amount.

The court held that the insurer could not rely on s. 258(13) of the Insurance Act because no judgment had been obtained by the original plaintiffs against the insured defendants.

The non‑waiver agreement also did not permit recovery in the existing action, as the proceeding did not determine coverage obligations between insurer and insured.

Applying the discretionary test under Rule 19.03(1), the court found the defendants had demonstrated a continuing intention to defend and reasonably relied on their insurer to do so.

The noting in default was set aside, also independently invalid because the statement of claim had been served outside the six‑month limit in Rule 14.08 without an extension.

The plaintiffs initiated steps to bring a motion to remove the defendants' lawyer for alleged conflict of interest and fraud, including requesting a case conference and setting a timetable.

On the deadline to serve their motion record, the plaintiffs indicated they were not proceeding.

The defendants sought costs for the abandoned motion.

The Master held that although no formal notice of motion or abandonment was served, the plaintiffs had 'made' a motion under Rule 37.09(1) by taking positive steps.

Costs were awarded to the defendants on a substantial indemnity scale due to the plaintiffs' unsubstantiated allegations of fraud and unprofessional communications.

The defendant moved for security for costs against the plaintiff based on outstanding cost awards and an allegation that the action was frivolous and vexatious.

The plaintiff alleged a beneficial ownership interest in family lands and resisted the motion by asserting impecuniosity and that the claim was not plainly devoid of merit.

The court held that while unpaid cost awards satisfied the threshold under Rule 56.01(1)(c), the plaintiff established genuine impecuniosity and the claim met the low threshold of not being plainly devoid of merit.

Accordingly, ordering security would unjustly terminate a potentially meritorious claim.

The court also addressed costs following the discontinuance of a corporate co‑plaintiff and awarded costs of the action and motion against that entity.

The court heard a reference for an accounting of monies owing, contributions made, and ownership holdings regarding multiple real estate properties owned by a partnership.

The court found that the managing partner breached his obligations by moving to Korea and delegating his duties, and disallowed his claims for management fees, travel expenses, and delegated work.

The court also found that the investing partner breached the agreement by unilaterally selling properties and retaining the proceeds, ordering him to repay the funds to the partnership.

Due to disorganized financial records, the court provided specific directions on allowable expenses and ordered the parties to prepare standardized itemized lists for a resumed hearing if they could not agree on the final accounting.

The plaintiffs brought a motion to compel production of confidential financial and Key Performance Indicator data relating to seven non-party Lexus dealerships, which were in the possession of the defendant.

The plaintiffs argued the information was necessary to test the reliability of averages used by the defendant’s expert in calculating the plaintiffs’ alleged loss of profits following termination of a dealership agreement.

The court held that the individual dealer data was not producible under Rule 31.06(3) because the defendant’s expert had not received or relied on that underlying information.

Although the documents were relevant under Rule 30.02 to the issue of loss of profits, the court declined to order production after balancing proportionality and prejudice.

The court found that disclosure would cause significant prejudice to the non-party dealers, whose confidential financial information would be revealed to a direct competitor.

The plaintiffs’ motion was dismissed and costs were awarded to both the defendant and the non-party dealers.

The plaintiffs brought a motion under rule 37.14(1) of the Rules of Civil Procedure to set aside a registrar’s order dismissing their motor vehicle accident action as abandoned under rule 48.15 and to extend time for service of an amended statement of claim on an additional defendant.

Applying the Reid factors, the court considered whether the delay was adequately explained, whether the dismissal resulted from inadvertence, whether the motion was brought promptly, and whether the defendants would suffer prejudice.

The court found that the delay was largely attributable to the plaintiffs’ lawyer’s mental health issues and constituted inadvertence rather than a deliberate decision to abandon the claim.

Although the delay was significant, the plaintiffs rebutted the presumption of prejudice and the defendants failed to establish actual prejudice.

Balancing the interests of finality with the principle that actions should be decided on their merits, the court set aside the dismissal and validated late service on the defendant.

The defendants brought a motion under Rule 39.03 of the Rules of Civil Procedure to compel the plaintiffs’ former lawyers to attend examinations as witnesses in aid of a motion to dismiss a 20‑year‑old action for delay.

The plaintiffs had filed affidavits attributing the delay in prosecuting the claim to the inaction and failures of their previous counsel.

The court held that the former lawyers were likely to possess relevant evidence concerning the causes of the delay and whether it was intentional or inexcusable.

By blaming their lawyers and placing the communications and conduct of counsel at issue, the plaintiffs were found to have waived solicitor‑client privilege to the extent necessary to permit examination.

The court ordered four former lawyers to attend examinations under Rule 39.03, quashed the summons against one lawyer, and directed that the examinations occur after cross‑examinations on the plaintiffs’ affidavits.

A defendant against whom the action had been discontinued brought a motion under Rule 23.05 seeking costs of the action and delivery of a release.

The motion was brought more than 14 months after the notice of discontinuance, well beyond the 30‑day deadline prescribed by the Rules of Civil Procedure.

The court held that although the deadline may be extended under Rule 3.02, the moving party must provide a satisfactory explanation for the delay and demonstrate absence of prejudice.

While the responding plaintiffs would not have been prejudiced, the moving party provided no explanation for the delay.

The court also found there had been no agreement requiring delivery of a release because the parties had not reached a meeting of the minds on the terms of settlement.

The request for an extension of time was refused and the motion dismissed, with costs awarded to the plaintiffs.

Following motions for leave to intervene in two related insurance actions, the intervenor successfully obtained party status as a defendant.

The court considered the appropriate costs award arising from the intervention motions.

The judge found that the plaintiff’s litigation conduct—including unnecessary opposition, procedural delays, and additional cross-examinations—significantly increased the intervenor’s costs.

While the conduct did not rise to the level warranting elevated costs, partial indemnity costs were appropriate.

The court fixed costs globally for both actions and ordered the plaintiff to pay the intervenor’s costs.

The defendants moved to dismiss the plaintiff's action for abuse of process and breach of a court order requiring attendance at discovery and production of documents, or alternatively to strike a notice on title and compel further productions.

The plaintiff cross-moved to extend the time for discovery after his visa to enter Canada was refused.

The Master found the plaintiff's failure to attend discovery was explained and his document production, while deficient, showed substantial compliance.

The Master dismissed the motion to dismiss the action and the motion to strike the notice on title, finding no abuse of process and lacking jurisdiction to strike the notice.

The plaintiff was granted an extension for discovery but ordered to post security and provide a further and better affidavit of documents.

Family members of a deceased life insured sought leave to intervene as parties in actions brought by the named beneficiary against two insurers for payment of life insurance proceeds.

The beneficiary had been charged with the murder of the insured, raising the public policy rule that a person cannot profit from their own wrongdoing.

The proposed intervenor, the deceased’s mother, argued she had a direct financial interest because the proceeds could fall to the estate and pass to her under intestacy if the beneficiary were disqualified.

The court held that the mother met the test under Rule 13.01 of the Rules of Civil Procedure as she asserted a reasonable interest in the subject matter and would be adversely affected by a judgment.

Leave to intervene was granted to the mother but denied to the sister, and the insurers were permitted to pay the proceeds into court pending the outcome of the criminal proceedings.