T.A. Pagliaroli

The plaintiff brought a motion to amend his Statement of Claim to substitute the names of a doctor and a nurse for 'Doctor Doe 1' and 'Nurse Doe 1' on the basis of misnomer, after the expiry of the limitation period.

The proposed defendant doctor opposed the motion, arguing it was an attempt to circumvent the limitation period.

The court applied the 'litigating finger' test and found that the proposed defendant's insurer, having received the Statement of Claim, would have known the plaintiff intended to sue the emergency room physician who treated him.

The court granted the motion, concluding it was a case of misnomer and no non-compensable prejudice would result.

The plaintiff sought substantial indemnity costs after successfully resisting the defendants' motion for summary judgment in a property line dispute.

The defendants argued for no costs or partial indemnity.

The court found that the defendants did not act unreasonably in bringing their summary judgment motion, despite its ultimate failure, and therefore declined to award substantial indemnity costs under Rule 20.06.

The court awarded the plaintiff partial indemnity costs of $25,000, inclusive of taxes and disbursements, noting that much of the work would have been necessary for trial regardless.

The defendants moved for summary judgment to dismiss the plaintiff's action for inducing breach of contract, nuisance, and trespass arising from a property line dispute.

The defendants had moved a fence onto the plaintiff's driveway shortly before the scheduled closing of the plaintiff's sale of her property, causing the purchasers to refuse to close.

The court dismissed the summary judgment motion, finding that the conflicting evidence regarding the historical location of the fence and the defendants' intent to procure a breach of contract raised genuine issues of credibility that required a trial.

In a wrongful dismissal action, the plaintiff brought a motion to amend his Reply to remove references to having received and relied upon legal advice regarding the interpretation of a termination clause in his employment contract.

The defendant opposed the amendment, arguing it constituted an attempt to withdraw admissions and sought a declaration that the plaintiff had waived solicitor‑client privilege over the legal advice.

The court held that the pleaded statements about receiving and relying on legal advice were deliberate and unambiguous admissions.

Because the plaintiff failed to satisfy the test for withdrawing admissions under Rule 51.05—providing no evidence of inadvertence, triable issue, or absence of prejudice—the amendment was refused.

The court further found that by placing his state of mind and the legal advice received directly in issue in the pleadings, the plaintiff impliedly waived solicitor‑client privilege regarding that advice.