Master Ronald Dash

The plaintiff moved under rule 37.14(1)(c) of the Rules of Civil Procedure to set aside a registrar’s order dismissing her wrongful dismissal action for delay under rule 48.14(5).

The court applied the contextual analysis derived from appellate jurisprudence and considered the four Reid factors: explanation for the delay, inadvertence in missing the deadline, promptness of the motion, and prejudice to the defendant.

While the plaintiff established inadvertence and moved promptly after learning of the dismissal, the court found the litigation delay inadequately explained and concluded that the plaintiff failed to rebut the presumption of prejudice arising from the expiry of the limitation period.

Balancing the competing principles of deciding cases on their merits and ensuring timely justice, the court declined to grant a further indulgence.

The motion to set aside the dismissal was therefore refused.

The defendant brought a motion seeking various relief including dismissal for delay, amendment of pleadings, issuance of a third party claim, a litigation timetable, and case management.

Following mixed success on the underlying motion, the court addressed costs.

The court found that the plaintiffs’ lawyer engaged in improper litigation conduct by misleading opposing counsel about payment of a prior costs order while secretly arranging for the funds to be garnished by a government creditor.

The court characterized the conduct as sharp practice contrary to professional obligations and held that it caused unnecessary motion costs.

Costs were awarded partly against the plaintiff corporation and partly personally against the plaintiffs’ lawyer under Rule 57.07.

The plaintiff brought a motion to set aside a registrar's order dismissing his wrongful dismissal action for delay.

The action was dismissed after the plaintiff failed to respond to a status notice.

The plaintiff's counsel argued the delay was due to the plaintiff's diagnosis with a brain tumour and subsequent death, which made obtaining instructions difficult.

The court applied the Reid factors and found that while the medical condition explained some delay, it did not excuse the failure to request a status hearing or the 11-month delay in bringing the motion to set aside.

Furthermore, the plaintiff failed to rebut the presumption of prejudice to the defendant, and actual prejudice was found due to the plaintiff's death and the loss of evidence regarding mitigation.

The motion was dismissed.

Following a motion to vary a prior order permitting two defence neuropsychological examinations, the court had previously concluded that the defendants failed to disclose a settlement agreement eliminating their adversity on liability.

The order was varied to allow only one examination, and the court considered the appropriate costs consequences of the defendants’ breach of their duty to immediately disclose the agreement.

The plaintiffs sought elevated costs given the defendants’ non‑disclosure and the procedural consequences that followed.

The court held that full indemnity costs were justified as a “consequence of the most serious nature” arising from the breach, even though the conduct was not found to be reprehensible.

Costs of $27,000 inclusive of disbursements and HST were fixed as fair, reasonable, and proportionate to the complexity and importance of the issues.

Costs determination following several pre‑trial motions in a civil action arising from a professional hockey incident.

The court considered competing motions concerning disclosure of a settlement agreement, neuropsychological examinations, production of expert materials, and procedural timelines.

The plaintiffs were largely successful, particularly in compelling disclosure of the settlement agreement and obtaining related procedural relief.

While elevated costs were awarded for part of the motion due to the defendants’ failure to disclose the agreement and the resulting prejudice, most costs were fixed on a partial indemnity basis after considering Rule 57.01 factors and the overall mixed results on some minor issues.

An automobile insurer sought to intervene in a tort action as an added defendant under Rule 13.01 of the Rules of Civil Procedure in order to allege that the accident was staged and to assert a crossclaim against its insured.

The court held that it was not an appropriate use of Rule 13.01 for a tort insurer to add itself as a party defendant where statutory third party status under s. 258 of the Insurance Act was available.

As a statutory third party, the insurer could still defend the claim on the basis that the accident did not occur or was staged and could obtain discovery of its insured where adversity existed.

Issues between insurer and insured, including indemnity claims, were more properly addressed in separate proceedings.

The request to intervene as a defendant was refused, but the insurer was granted alternate relief to be added as a statutory third party.

The plaintiffs moved to set aside an order that required the plaintiff to undergo two defence neuropsychological examinations.

The original order was made on the assumption that the defendants were adverse in interest.

It was subsequently discovered that the defendants had entered into a secret settlement agreement ending all adversity between them six months prior to the order.

The court found that the failure to disclose the agreement altered the landscape of the litigation.

The court varied the original order to permit only a single neuropsychological examination, finding that allowing two examinations by experts in the same field for non-adverse defendants was improper.

The court declined to exclude both reports entirely, finding that such a consequence would be disproportionate, but awarded the plaintiffs full indemnity costs.

The defendant, the owner of a cow that escaped onto a highway causing a motor vehicle accident, brought a motion to transfer two related personal injury actions from Toronto to Lindsay or Oshawa.

The plaintiffs, who resided in Ajax, received extensive medical treatment in Toronto and retained Toronto-based experts.

The court applied Rule 13.1.02(2)(b) and found that while the accident occurred in the Regional Municipality of Durham, the convenience of the treating specialists, medical experts, and counsel strongly favoured Toronto.

The court concluded that the defendant's proposed venues were not significantly better than the plaintiffs' reasonable choice of Toronto, and dismissed the motion with costs.

The defendants brought a motion under Rule 37.14(1)(a) to set aside an ex parte order extending time to serve a statement of claim.

The court held that the plaintiff failed to make full and fair disclosure on the ex parte motion, including misrepresenting the existence of settlement discussions and failing to disclose a defendant’s bankruptcy, which stayed proceedings.

The affidavit supporting the ex parte motion also improperly relied on hearsay without identifying the source of information, contrary to Rule 39.01(4).

The court concluded that proper disclosure might have affected the granting of the order and that the evidentiary record was insufficient to justify the extension.

The ex parte order and the subsequent service of the statement of claim were set aside.

Following a motion seeking to compel examinations under Rule 39.03 in aid of a contempt proceeding, the court addressed the issue of costs.

The moving parties had attempted to compel the examination of opposing counsel and several non-parties regarding a mortgage transaction allegedly breaching a prior court order.

The court found that the evidentiary steps taken were excessive, disproportionate, and primarily aimed at forcing the opposing lawyer to give evidence against his client and potentially disqualify himself.

Although the moving parties were entitled to limited costs for compelling a timetable for an affidavit, the motion to compel examination of counsel was dismissed and the responding party substantially succeeded.

Substantial indemnity costs were awarded to the responding party due to the unreasonable litigation strategy adopted by the moving parties.

The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure for leave to restore a personal injury action to the trial list after it had been struck for failing to obtain pre‑trial and trial dates.

The court applied the four‑part test governing delay, including whether the delay was intentional or contumelious, whether it was inordinate and inexcusable, whether the presumption of prejudice was rebutted, and whether actual prejudice was demonstrated.

The court found a delay of two years and eight months in seeking pre‑trial and trial dates and concluded the delay was deliberate or, at minimum, inordinate and unexplained.

The plaintiff failed to provide evidence rebutting the presumption of prejudice arising from the delay.

The motion to restore the action to the trial list was therefore refused, although a related amendment correcting a misnomer was permitted.

Following earlier reasons addressing disclosure of a settlement agreement between co-defendants, the defendants requested supplementary reasons to clarify whether the court had implied professional misconduct by counsel.

The court issued an addendum confirming that no lawyer intentionally misled the court and expressing confidence in counsel’s professionalism.

However, the court maintained its conclusion that the settlement agreement ending adversity between the defendants should have been disclosed because it was relevant to a prior motion concerning two neuropsychological examinations.

The court held the failure to disclose was an honest but mistaken decision made in good faith, rejecting claims that correspondence from the plaintiffs influenced the earlier ruling.

The plaintiff, a professional hockey player, was seriously injured by the defendant during a game.

The plaintiff sued the defendant and the team owners, alleging vicarious and direct liability.

The defendant issued a third party claim against the head coach.

The defendants and third party subsequently entered into a secret settlement agreement that dismissed the cross-claims and third party claim, and apportioned liability among them.

The plaintiff brought a motion to compel production of the settlement agreement.

The court granted the motion, holding that the agreement changed the landscape of the litigation and must be disclosed to ensure trial fairness, regardless of whether settlement privilege is a class privilege or determined on a case-by-case basis.

The plaintiffs commenced a solicitor's negligence action against the defendant lawyer as a precautionary measure, alleging he failed to prosecute an underlying fraud action.

The plaintiffs took no steps in the negligence action for over two years, intending to hold it in abeyance pending the outcome of a second underlying action against the fraudsters.

At a status hearing, the court applied the Khan test and found that while the plaintiffs' unilateral decision to hold the action in abeyance without notifying the defendant was unreasonable, a contextual approach favoured allowing the action to proceed on its merits, as the defendant suffered no prejudice.