S. Erentzen

The plaintiff in a simplified procedure product liability action sought further and better affidavits of documents from the defendants regarding a failed flexible water supply connector.

The plaintiff requested 125,000 pages of documents and expert reports that the defendants had previously produced in a related US class action.

The court ordered the production of the 125,000 pages of documents, finding them relevant and necessary for the plaintiff to prove its case, but denied the request for expert reports based on proportionality concerns.

The defendants brought a preliminary motion to strike various paragraphs of the plaintiff's supporting affidavit filed in connection with a motion for answers to discovery refusals.

Applying the principles from Chopik v. Mitsubishi Paper Mills Ltd., the Master struck paragraphs containing the law clerk's opinion and interpretation of evidence, while allowing paragraphs that merely attached or quoted public documents.

Paragraphs containing argument were not struck but were directed to be considered as part of the plaintiff's argument rather than evidence.

The moving party, Toronto Hydro, sought to set aside an ex parte order extending the time for the plaintiffs to serve their statement of claim.

Toronto Hydro argued that the plaintiffs failed to disclose material facts on the ex parte motion, including the expiration of the limitation period and the lack of notice to Toronto Hydro, and failed to address prejudice.

The court dismissed the motion, finding that no material facts were omitted that would have impacted the original decision.

The court also held that the failure to address prejudice in the supporting affidavit was a matter for appeal, not a ground for setting aside the order under Rule 39.01(6), and that Toronto Hydro suffered no material prejudice as it had recycled the evidence itself prior to the deadline for service.