Ronna Marie Brott

The plaintiff sought leave to amend his statement of claim to add allegations that the defendant insurer's underwriting policy constituted discrimination under the Human Rights Code, and to clarify facts and plead provisions of the Insurance Act.

The defendant opposed the Human Rights Code amendments, arguing lack of jurisdiction, untimeliness due to limitation period expiry, and prejudice.

The court found it had jurisdiction under Section 46.1 of the Code, as the Code claim was brought with an independent cause of action (breach of insurance contract).

It also determined that the limitation period for the Code amendments had not expired, as the plaintiff only discovered the relevant underwriting guidelines in March 2021, and in any event, declaratory relief sought under the Code has no limitation period.

The court found no uncompensable prejudice to the defendant.

Leave to amend was granted, and costs were awarded to the plaintiff.

The plaintiff, an accounting firm, brought a motion to compel the non-party Deloitte LLP to produce documents related to two client audits.

The plaintiff alleged that a former partner, now at Deloitte, misused and misappropriated confidential client data upon his departure.

The defendant and Deloitte refused disclosure.

The court applied Rule 30.10 of the Rules of Civil Procedure, considering the relevance of the documents to liability and damages, and whether it would be unfair for the plaintiff to proceed without them.

The court found the documents relevant and necessary for the plaintiff's expert, and that the defendant's discovery evidence was inadequate.

Despite Deloitte's confidentiality concerns, the court ordered production, subject to a non-disclosure agreement and sealing order, finding Deloitte was not a "stranger" to the litigation.

The plaintiffs sought production of banking, income tax, and municipal records from the defendants in two civil actions alleging conversion of millions of dollars in assets.

A preliminary motion by the defendants to strike the plaintiffs' extensive affidavit evidence was partially successful, but the court decided to proceed with the main production motion, ignoring irrelevant evidence.

The court granted the production order for tax records and CIBC banking records, finding them relevant to the alleged breach of fiduciary duty and fraud, and that the need for information outweighed privacy concerns.

Municipal and county records were produced by consent.

The plaintiff, York Region Vacant Land Condominium Corporation No. 1010, brought a motion for leave to file a Fresh as Amended Statement of Claim, including the addition of a new defendant, Patrick Greco.

The defendants opposed certain proposed amendments, arguing they were scandalous, irrelevant, or pleaded evidence.

The Master granted leave to amend the statement of claim and add the new defendant, but struck paragraphs 8, 95, and 102-105 from the proposed pleading, finding them to be scandalous references, irrelevant, or improper pleadings of evidence.

The plaintiff obtained an ex parte Certificate of Pending Litigation (CPL) against a property that had been transferred from the defendant's ex-husband to the defendant as part of a separation agreement.

The defendant moved to discharge the CPL, arguing the plaintiff failed to make full and fair disclosure of material facts, including a prior settlement and release, and the circumstances surrounding a previous motion to renew a writ of execution.

The court found the plaintiff breached the duty of full and fair disclosure under Rule 39.01(6) of the Rules of Civil Procedure and discharged the CPL, emphasizing the exceptional duty on parties seeking ex parte relief.

The plaintiff brought a motion to compel the defendants to attend mediation, while the defendants brought a cross-motion to dismiss or stay the action due to the plaintiff's failure to pay a prior costs order of $24,805.22.

The court considered the mandatory mediation provisions under Rule 24.1 of the Rules of Civil Procedure and the discretion to dismiss or stay an action for unpaid costs under Rules 57.03(2) and 60.12.

Balancing the competing interests, including the plaintiff's access to justice, her alleged impecuniosity, the defendants' concession that some monies were owed to the plaintiff, and the ex-husband's (also a defendant) outstanding costs in a related family law proceeding, the court ordered the action to continue for the sole purpose of compelling the parties to attend mediation.

The issue of all outstanding costs was directed to be addressed at mediation, and the decision on the defendants' cross-motion was deferred until after mediation, if unsuccessful.

The plaintiff sought to compel the President and CEO of Caesars Entertainment Windsor Limited (CEWL) to appear as a discovery witness in an action for recovery of gambling losses.

The plaintiff alleged negligence by the casino in allowing him to gamble while intoxicated and as a known problem gambler.

The court applied principles for corporate discovery representatives, finding that the CEO lacked sufficient direct involvement with the events, and compelling his attendance would be oppressive for a non-landmark case.

The motion was dismissed, and no costs were awarded due to counsel's conduct regarding the motion's venue.

The plaintiff brought a motion seeking an order to provide discovery documents, transcripts, and answers to its competition lawyers for the limited purpose of obtaining legal advice.

This advice was to determine whether to bring a further motion to seek leave of the Court to provide some or all of this material to the Competition Bureau, which was conducting an investigation into the defendant's fee structure.

The defendant opposed, arguing that the disclosure would breach the deemed undertaking rule and a confidentiality agreement.

The Master found that the deemed undertaking rule was not engaged because the purpose was to obtain legal advice for a potential further motion within the same proceeding, not for a collateral or ulterior purpose.

Even if the rule were engaged, relief would be granted due to the plaintiff's fundamental right to counsel of choice and the defendant's failure to demonstrate prejudice.

The Master also concluded that providing the documents to counsel for this limited purpose would not breach the confidentiality agreement.

The motion was granted.

The defendant, SPS Commerce Canada Ltd., brought a motion to strike paragraphs 33 to 40 of the plaintiff's Statement of Claim, arguing they contained without prejudice settlement discussions protected by settlement privilege.

The plaintiff, Tricia Clayton, opposed the motion, distinguishing between settlement discussions regarding a severance package and communications related to the employer's statutory duty to investigate harassment allegations and a Performance Improvement Plan (PIP).

The court found that the three conditions for settlement privilege were not met for the communications concerning the investigation and PIP, as these were factual and part of the employer's statutory obligations, not attempts to effect a settlement.

The motion to strike was dismissed.

The defendant brought a motion for security for costs against the plaintiff, Aaron Goldman, who was ordinarily resident outside Ontario.

The court found that Goldman failed to meet the high evidentiary threshold to establish impecuniosity, as his financial disclosures were incomplete and lacked supporting documentation.

Furthermore, the court determined that Goldman's professional negligence claim against his former solicitor did not have a good chance of success, particularly given a prior ruling by Justice Myers on a limitations defence in a related action.

The motion for security for costs was granted, requiring Goldman to post $60,000.00.

The defendant Global Safety & Equipment Inc. brought a motion to set aside service of the Statement of Claim and to stay or dismiss the action, arguing that Ontario was not the proper forum.

The plaintiff, Integrity Worldwide Inc., opposed the motion.

The court found that service outside Ontario was authorized under Rules 17.02(f), (g), and (i) as the claim related to a contract breached in Ontario, torts committed in Ontario (specifically, conspiracy where harm was suffered), and sought injunctive relief affecting Ontario.

The court further determined that Ontario had a real and substantial connection to the dispute, satisfying presumptive connecting factors for jurisdiction, and was the most convenient forum, as the defendant failed to identify a more convenient alternative.

The motion was dismissed.

The plaintiff, Sky Solar (Canada) Ltd., brought a motion for costs on a substantial indemnity basis after the defendant broker, Firstbrook, Cassie & Anderson Limited (FCA), abandoned its motion for summary judgment.

The court found that Sky Solar was prima facie entitled to costs under Rule 37.09(3) and that FCA failed to displace this entitlement.

Furthermore, the court determined that FCA acted unreasonably in bringing the summary judgment motion, particularly by ignoring judicial caution regarding expert evidence and proceeding without sufficient evidence, thus warranting substantial indemnity costs under Rule 20.06.

The plaintiff, True North Vantage Inc., brought a motion seeking relief from the deemed undertaking rule to disclose evidence gathered during discoveries to the Hamilton Police Service, alleging that the defendant Steven Zhen Pang committed perjury.

The defendants resisted the motion, arguing issue estoppel or abuse of process, as a privy of the plaintiff had previously sought and been denied the same relief.

The court dismissed the motion on the grounds of issue estoppel, finding that the issue had been finally decided in prior proceedings involving the plaintiff's affiliate, Orbixa, and that the plaintiff was attempting to re-litigate the matter.

The court also found the motion constituted an abuse of process, noting it appeared to be a collateral attack on previous decisions and an attempt to gain leverage.

The plaintiff moved under Rule 48.11 to restore an action to the trial list after it had been struck when a Trial Certification Form was not filed.

The court held that the trial coordinator had jurisdiction to remove the action from the list under the Courts of Justice Act and the Rules of Civil Procedure.

Applying the test articulated by the Court of Appeal, the plaintiff was required to provide an acceptable explanation for delay and demonstrate that the defendant would not suffer non-compensable prejudice.

The court found a prolonged period of inactivity between 2007 and 2011 with no adequate explanation and inferred a deliberate decision to hold the litigation in abeyance.

The plaintiff also failed to rebut the presumption of prejudice arising from the lengthy delay.

The motion to restore the action to the trial list was dismissed.

The defendants brought a motion for directions regarding the conduct of the plaintiff’s counsel during an examination for discovery, alleging obstruction, coaching of the witness, and improper interruptions.

They sought an order requiring the plaintiff to re-attend the discovery at her own expense and costs thrown away.

The court held that although the plaintiff’s counsel frequently interrupted and lacked familiarity with litigation procedures, the conduct stemmed from inexperience and an overly protective approach rather than obstructionist behaviour.

The examination had been prematurely terminated and remained incomplete.

The court ordered the plaintiff to re-attend for discovery but required each party to bear its own costs.

The defendants brought a motion requiring the plaintiff to post security for costs in a solicitor’s negligence action arising from the dismissal of the plaintiff’s earlier employment and disability benefits lawsuit for delay.

The court applied Rule 56.01 of the Rules of Civil Procedure and found that the plaintiff was ordinarily resident outside Ontario, having lived abroad for extended periods and lacking exigible assets within the jurisdiction.

The plaintiff failed to provide sufficiently detailed financial disclosure to establish impecuniosity and did not demonstrate a good chance of success on the merits of the negligence claim.

The court also considered fairness to both parties given the overlapping proceedings and litigation history.

Security for costs was ordered in the amount of $40,000 on a partial indemnity basis up to the completion of examinations for discovery.

The plaintiff brought a motion to set aside Notices of Discontinuance previously filed against an insurer and the Superintendent of Financial Services in a motor vehicle accident action.

The discontinuances had been filed after another insurer accepted priority for accident benefits, leading the parties to believe it would also be responsible for uninsured motorist coverage.

Years later, that insurer reversed its position, creating uncertainty as to coverage and potential recovery.

The court held that although the discontinuances were not filed through inadvertence, they were based on a shared misapprehension of the factual circumstances regarding insurance responsibility.

Given the lack of significant prejudice to the former defendants and the risk of severe prejudice to the plaintiff, the court exercised its inherent jurisdiction to set aside the discontinuances.

The action was permitted to proceed against the insurer and the Superintendent.

The moving defendants sought an order compelling the plaintiffs to answer discovery questions and produce documents concerning communications with their solicitors regarding reliance on a lawyer’s email about the completion of an equity raise in a financing transaction.

The defendants argued that because the plaintiffs pleaded reliance on representations concerning the equity financing, solicitor-client privilege over related communications had been waived.

The court held that privilege is waived only where a party makes the receipt of legal advice a substantive element of its claim or defence.

The plaintiffs relied on factual representations in correspondence rather than on legal advice received from their counsel.

As a result, no express or implied waiver of solicitor-client privilege occurred and the motion to compel further discovery was dismissed.

The plaintiffs brought a motion for leave to amend their Statement of Claim to add additional defendants, including insurers, and to seek declaratory relief regarding entitlement to statutory accident benefits and uninsured or underinsured motorist coverage following a motor vehicle accident involving an uninsured driver.

The proposed insurers opposed the amendments, arguing that accident benefits claims required prior mediation and that there was insufficient evidence to support entitlement to coverage as dependent relatives under the relevant policies.

The court considered Rule 26.01 of the Rules of Civil Procedure and whether the proposed amendments raised triable issues.

It held that there were serious and triable issues regarding potential coverage under the insurance policies and that denying the amendments would be premature.

The court granted leave to amend the Statement of Claim and allowed the proposed insurers to be added as defendants.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action for delay and to extend and validate service of the statement of claim.

The court applied a contextual approach considering the Reid factors, including explanation for delay, inadvertence, motion delay, and prejudice.

The court found the plaintiff had provided an adequate explanation for the delay in attempting to locate and serve the defendant, and accepted counsel’s evidence that the failure to take additional steps earlier was inadvertent.

The court also found the defendant’s insurer had early notice of the claim, mitigating any presumption of prejudice arising from the expiry of the limitation period.

The dismissal order was set aside and the time for service extended, with service validated.