R. Plate

The plaintiffs brought a motion to remove the defendants' counsel and their law firm from the record for an upcoming pending motion.

The plaintiffs argued that because partners of the law firm had sworn affidavits for the pending motion, the firm's continued representation created a conflict of interest and an appearance of impropriety.

The court dismissed the motion, finding it premature and noting that the practice of lawyers appearing on motions where their colleagues have filed affidavits is common and acceptable in Ontario civil litigation.

The court awarded costs of $11,580 to the defendants.

The defendant and statutory third party brought a motion to compel the plaintiffs to attend in-person defence medical examinations, including physiatry assessments for both plaintiffs and a psychiatric assessment for one plaintiff, after the action had been set down for trial.

The court granted leave under Rule 48.04(1), finding that the plaintiffs' late delivery of numerous expert reports and medical records demonstrating a significant and unexpected deterioration in their conditions constituted a substantial change in circumstances.

The court ordered the plaintiffs to attend the requested examinations to ensure trial fairness and allow the defendants an adequate opportunity to meet the plaintiffs' case.

The defendants in a solicitor negligence action brought a motion to compel the plaintiff to attend orthopaedic and psychiatric defence medical examinations.

The action had already been set down for trial, requiring the defendants to seek leave under Rule 48.04.

The court applied the flexible approach to granting leave, noting that the trial date was not in jeopardy and that trial fairness required the defendants to have an opportunity to respond to the plaintiff's expert reports.

Despite the plaintiff's concerns regarding the COVID-19 pandemic and travel, the court ordered a virtual psychiatric assessment and an in-person orthopaedic assessment, finding that safety protocols at the hospital would adequately address the risks.

The defendant brought a motion for leave to amend the amended statement of defence in a solicitor’s negligence action alleging failure to commence a motor vehicle accident claim.

The proposed amendments sought to plead an alternative defence based on discoverability and the timing of the limitation period.

The court applied Rule 26.01 of the Rules of Civil Procedure, which requires that amendments be granted unless non-compensable prejudice would result.

The plaintiff argued that allowing the amendment could eliminate her cause of action and that she had relied on the absence of a discoverability defence.

The court held that the plaintiff failed to provide sufficient evidence of prejudice that could not be compensated by costs or adjournment and granted leave to amend.

The moving party (defendant) in a solicitor's negligence action sought leave to amend his statement of defence to plead an alternative defence of discoverability regarding a missed limitation period for a 2001 motor vehicle accident.

The responding party (plaintiff) opposed the amendment, arguing it would cause irreparable prejudice.

The Master granted the motion, finding that the responding party's evidence of prejudice was insufficient and that any potential prejudice could be compensated by costs.