Associate Judge Ronna M. Brott

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 underlying action was administratively dismissed for delay by the registrar pursuant to Rule 48.14.

The defendants subsequently brought a motion seeking their costs of the action on a substantial indemnity basis.

The court dismissed the motion, finding that Rule 48.14 does not provide for costs upon an administrative dismissal, and that the defendants could have moved for dismissal under Rule 24 if they wished to seek costs.

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 plaintiff brought a motion to set aside a Registrar's Order dismissing her motor vehicle accident action for delay.

The action was dismissed in January 2014 after the plaintiff failed to set it down for trial by the deadline.

Applying the Reid factors, the court found the plaintiff failed to adequately explain the delay, failed to prove inadvertence, did not move promptly to set aside the dismissal, and failed to rebut the presumption of prejudice to the defendants given the passage of nearly ten years since the accident.

The motion was dismissed.

The plaintiff brought a motion to strike the defendants' Statement of Defence due to their failure to produce documents, comply with a previous court order, and fulfill undertakings given during cross-examinations.

The defendants argued that the requested productions, including text messages and voicemail audio files, were disproportionate and inaccessible.

The Master found that the defendants had breached their disclosure obligations and undertakings, but declined to strike the Statement of Defence immediately.

Instead, the Master ordered the defendants to comply within 90 days, failing which the plaintiff could move again to strike the pleading.

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 air freight company brought a motion under Rule 45.02 of the Rules of Civil Procedure seeking an order requiring the defendant sales agents to pay 732,376.72 EUR into court.

The plaintiff argued the funds represented unpaid cargo sales revenues.

The court dismissed the motion, finding that the plaintiff failed to establish a legal right to a specific, readily identifiable fund, as the defendants deposited all monies into a general corporate account without segregation.

The court concluded the plaintiff's claim was essentially for damages and granting the relief would amount to execution before judgment.

The plaintiff brought a motion for leave to examine a customer relations coordinator of the defendant tour operator under Rule 39.03(1) in advance of a pending summary judgment motion.

The underlying action involves a slip and fall at a resort in Cuba.

The plaintiff sought to examine the witness regarding the corporate relationship between the various defendants.

The court granted the motion, finding the threshold for such an examination is low and the plaintiff established the witness had relevant information that was more than a fishing expedition.

The defendants brought a motion requiring the plaintiff to produce English-language translations of German-language documents listed in its Affidavit of Documents prior to examinations for discovery.

The plaintiff argued there was no obligation to translate documents produced on discovery.

The court held that, by analogy to the rules regarding interpreters at oral examinations and the general principle of proportionality, the producing party has an obligation to provide translations of relevant foreign-language documents at the discovery stage so the opposing party can understand the case it has to meet.

The plaintiff was ordered to produce translations of the key German-language emails at its own expense.

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 defendants brought a motion to dismiss the plaintiff's wrongful dismissal action for delay, failure to appoint counsel, and failure to comply with an interlocutory order.

The action had been struck from the trial list in 2012, and the plaintiff's former counsel had removed themselves from the record shortly after.

The court found that the plaintiff failed to provide a satisfactory explanation for the delay and that the defendants would suffer real prejudice due to the faded memory of their key investigator.

The motion to dismiss the action for delay under Rule 24.01 was granted.

Formerly convicted individuals brought a motion to set aside a Registrar’s administrative dismissal under Rule 48 after their civil actions for malicious prosecution and wrongful conviction had been dismissed for delay.

The court applied the four-factor framework from Reid v Dow Corning Corp, examining explanation for litigation delay, inadvertence, promptness of the motion, and prejudice to the defendants.

The court found the delay adequately explained, largely attributable to document production issues and changes in counsel, and concluded that counsel’s failure to diarize the set-down date constituted inadvertence rather than deliberate delay.

The defendants failed to establish actual prejudice, despite the age of the underlying events.

Applying a contextual approach and considering amendments to Rule 48.14, the court held that justice required permitting the plaintiffs to proceed.

In a long-running wrongful dismissal and unjust enrichment action, the self-represented plaintiff moved to recuse the case management master on the basis of alleged systemic bias arising from case management decisions and the handling of repeated procedural disputes.

Applying the objective reasonable apprehension of bias test, the court held that the threshold for disqualification is high, particularly in the case management context, and that allegations alone are insufficient.

The court found no cogent evidence that the judicial officer was incapable of impartial adjudication or was no longer open to persuasion by evidence and submissions.

The recusal motion was dismissed.

The defendant employer moved to strike portions of an amended statement of claim in a wrongful dismissal action on the basis that they pleaded privileged settlement communications.

The court applied the three-part settlement privilege framework and held that litigation was not contemplated until defence counsel became involved in November 2011.

Allegations reflecting unconditional assertions of contractual rights or the defendant’s actual legal position were not protected, but paragraphs expressly referring to attempts to resolve the sabbatical issue on a without prejudice basis during the litigious period were privileged.

The motion was granted only in part, with two paragraphs struck and leave to redraft.

The moving defendants sought leave to amend their statement of defence to add a counterclaim, crossclaim, and a third party claim in a mortgage enforcement action brought by trustees for syndicated mortgage investors.

The court held that several proposed amendments attempted to withdraw admissions deemed under a Request to Admit, which could not be done indirectly through amended pleadings.

The court further found that proposed claims for an accounting and set-off were not proper defences to the mortgage claim.

The proposed third party claim relating to an alleged improvident sale of a separate property was unrelated to the main mortgage dispute and appeared designed to delay the proceedings.

Leave to amend the defence and counterclaim and to commence the third party claim was dismissed, but leave to add the crossclaim was granted on an unopposed basis.

Following dismissal of a malicious prosecution action for delay and the subsequent dismissal of a motion to set aside the registrar’s order, the court addressed costs.

The responding police defendants sought partial indemnity costs and reduced their request due to the moving party’s limited financial means.

The moving party argued that costs should not be awarded on public policy and access to justice grounds, relying on authorities where unsuccessful litigants were spared costs to avoid discouraging public interest litigation.

The court distinguished those authorities because the action had not been adjudicated on its merits but had been dismissed for delay and failure to comply with procedural rules.

Costs were awarded in a reduced amount payable within six months.