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Noting in default set aside with substantial indemnity costs due to defendant counsel's sharp practice.
The third party brought a motion to set aside a noting in default.
The third party had previously obtained a waiver or extension of time to deliver a defence from the defendant's former counsel.
The defendant's new counsel noted the third party in default without providing any notice or requesting the defence.
The court found this constituted sharp practice and a breach of professional obligations.
The motion was granted, the noting in default was set aside, and the defendant was ordered to pay substantial indemnity costs of $9,600.
Leave denied to compel production of CPSO letter; s. 36(3) RHPA bars admissibility.
The plaintiffs in a medical negligence action brought a motion for leave to bring a motion after setting the action down for trial, and for an order compelling the defendant physician to produce his response letter to the College of Physicians and Surgeons of Ontario.
The court found that leave was required under Rule 48.04(1) and declined to grant it, as the plaintiffs had known about the letter for nearly a decade and offered no plausible explanation for the delay.
Even if leave had been granted, the court held the CPSO response letter was inadmissible in civil proceedings under s. 36(3) of the Regulated Health Professions Act, which constitutes an absolute bar to use of documents prepared for College proceedings.
