Thomas Hawkins

The respondent, Old Republic Insurance Company of Canada, brought a motion for leave to deliver an amended factum to withdraw an admission of liability coverage made in its original factum.

The applicant, Coast Capital Equipment Finance Ltd., opposed the motion, arguing prejudice.

The court granted the motion, finding that the interests of justice dictate deciding the underlying application on its merits, not on a solicitor's error, and that the prejudice to the applicant was not so great as to dismiss the motion, especially given prior costs awards.

The defendants brought a motion to dismiss the plaintiff's legal malpractice action due to his failure to pay multiple costs orders totaling $29,000.

The plaintiff, a self-represented litigant, had a history of unpaid costs awards and had made numerous unproven allegations of bias and corruption against judges and opposing counsel.

The court found that the plaintiff had no intention of paying the outstanding costs and dismissed the action under Rule 60.12, subject to a condition allowing the plaintiff to move to set aside the dismissal if he successfully appealed a related matter to the Supreme Court of Canada.

The plaintiffs brought a motion to vary a timetable order, seeking leave to set the action down for trial despite unfulfilled mandatory mediation requirements and an extension of the trial set-down deadline.

The defendants opposed, alleging prejudice due to delay and missing documents related to a fraudulent conveyance claim.

The court found that both parties contributed to the delay in procedural steps, particularly regarding mediation and document exchange.

The motion was granted, varying the timetable to set new deadlines for mediation, setting the action down for trial, and for defendants to serve affidavits of documents, as no inordinate delay or actual prejudice to the defendants was established.

The plaintiffs brought a motion for leave to amend their statement of claim to add a new corporate defendant and to consolidate two related actions.

The proposed defendant opposed the motion, arguing the claim was statute-barred under the Limitations Act, 2002.

The court applied the discoverability doctrine and found that the plaintiffs did not know, and ought not to have known, the true identity of the testing laboratory until they received a letter from defence counsel in 2011.

The court granted leave to add the defendant, concluding the claim was not clearly statute-barred, but allowed the defendant to raise the limitation defence at a later stage.

The defendant brought a motion for an order requiring the corporate plaintiff to post security for costs.

The corporate plaintiff resisted, claiming impecuniosity and that its claim was not devoid of merit.

The court found that the corporate plaintiff failed to meet the high evidentiary burden to establish impecuniosity, as it did not provide complete financial disclosure.

Furthermore, the court determined that the corporate plaintiff did not have a good chance of success on the merits of its claims regarding uncompetitive pricing and alleged threats by the defendant.

The motion was granted, and the corporate plaintiff was ordered to post $40,000 in security for costs.

The plaintiffs brought a motion under Rule 30.06 of the Rules of Civil Procedure seeking an order compelling the defendant to disclose a specific PhD thesis and other 'secondary sources' not included in the defendant's affidavit of documents.

The court dismissed the motion, finding no evidence that the thesis was relevant to any matter in issue or that any specific relevant documents had been omitted.

The court also held that ordering disclosure of documents consulted by the defendant's legal team would infringe litigation privilege.

The defendant moved to dismiss a motor vehicle accident action for delay under the Rules of Civil Procedure, relying on the plaintiffs’ failure to comply with a litigation timetable and to set the matter down for trial.

A plaintiff brought a cross‑motion to vary the timetable order previously imposed when the action was reinstated after an administrative dismissal.

The court held that the earlier reinstatement order effectively displaced reliance on the six‑month set‑down requirement and that dismissal for delay was not warranted.

While most of the delay was attributable to the plaintiffs, including missed deadlines and discovery delays partly arising from conflict-of-interest issues among plaintiffs, the court emphasized the preference for resolving civil actions on their merits.

The timetable order was varied and the action permitted to proceed, subject to the defendant’s ability to raise prejudice at trial arising from incomplete medical records.

The plaintiffs brought a motion to set aside a registrar’s order dismissing their personal injury action as abandoned under former Rule 48.15 of the Rules of Civil Procedure.

The action arose from a motor vehicle collision and had been dismissed after no defence was filed within the prescribed period.

Applying the contextual approach endorsed in Scaini v. Prochnicki and subsequent appellate authority, the court considered the Reid factors, including explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendants.

Although the plaintiffs’ explanation for delay and the timing of the motion were unsatisfactory, the registrar’s dismissal occurred before the required 45‑day notice period expired, constituting an irregularity.

The court also found no significant prejudice to the defendants and emphasized the policy favouring determination of disputes on their merits.

The defendant brought motions for security for costs in two related motor vehicle accident actions commenced by spouses.

Although the plaintiffs had moved to Ghana and were therefore ordinarily resident outside Ontario, they proposed transferring the actions to Small Claims Court.

The court held that if the actions were transferred, security for costs would not be available because the Small Claims Court lacks jurisdiction to order it.

The decision on the motions was therefore reserved for 120 days to allow the plaintiffs to pursue transfer of the actions.

The plaintiffs brought a motion seeking orders compelling a lawyer for the defendant to answer questions refused on cross-examination and granting leave to file additional affidavits in support of a pending motion to amend the statement of claim and add a proposed defendant.

The refusals were based on solicitor-client privilege.

The court held that two questions seeking factual information did not infringe solicitor-client privilege and must be answered, while a third question had already effectively been answered.

Applying Rules 1.04 and 39.02(2) of the Rules of Civil Procedure, the court granted leave to file three additional affidavits responding to issues raised on cross-examination and addressing limitation concerns relating to the discoverability of the plaintiffs’ claims.

The plaintiff brought a motion for leave to amend the statement of claim to add a surgeon as a defendant in a medical negligence action after the action had already been set down for trial.

The proposed defendant opposed the motion on the basis that the claim was barred by the two‑year limitation period under the Limitations Act, 2002.

The court held that there were genuine issues of fact and credibility regarding discoverability, including allegations that the proposed defendant failed to disclose an intra‑operative complication and may have misled the plaintiff’s counsel.

Applying the approach in Wong v. Adler, the court determined that such factual disputes should not be resolved on a motion to amend.

The surgeon was therefore added as a defendant with leave to plead a limitation defence.

The plaintiff in a civil action for damages arising from an alleged assault brought a motion to validate late and irregular service of an amended statement of claim on three defendants.

Two defendants had been personally served after the six‑month service period prescribed by Rule 14.08(1) of the Rules of Civil Procedure had expired, while the third had only been served by mail without prior authorization for substituted service.

The court considered whether to extend time and validate service under Rule 3.01, focusing on whether the defendants suffered actual prejudice from the delay.

Relying on appellate guidance emphasizing prejudice rather than counsel’s conduct, the court found no evidence of actual prejudice despite the expiry of the limitation period.

Service was validated and the time for service extended, with time for delivery of statements of defence also extended.

At a contested status hearing under Rule 48.14 of the Rules of Civil Procedure, the defendants sought dismissal of a long‑standing civil action for delay.

The plaintiffs were required to show cause why the action should not be dismissed by demonstrating an acceptable explanation for the delay and the absence of non‑compensable prejudice to the defendants.

The court found substantial unexplained litigation delay and concluded that the plaintiffs failed to provide an acceptable explanation.

However, the defendants failed to establish actual non‑compensable prejudice affecting their ability to present their defence at trial.

The court allowed the action to proceed subject to strict conditions, including a deadline to restore the action to the trial list and limits on further discovery.

The plaintiff brought a motion for leave to amend the statement of claim to add two additional defendants in an action alleging wrongful dismissal and related civil wrongs.

The proposed defendants opposed the amendment on the basis that the applicable two‑year limitation period had expired under the Limitations Act, 2002.

The court considered the discoverability doctrine and whether the plaintiff knew or ought to have known of the involvement of the proposed defendants more than two years before the motion was served.

Finding the evidentiary record insufficient to determine the discoverability issue conclusively, the court granted leave to amend and permitted the proposed defendants to plead a limitations defence.

Costs of the motion were reserved.

The plaintiff brought a motion under Rule 37.14 to set aside a registrar’s order dismissing a personal injury action for delay.

The action arose from a motor vehicle accident and had been dismissed after the plaintiff failed to set the matter down for trial following mediation.

Applying the contextual approach endorsed in Scaini v. Prochnicki, the court considered the four Reid criteria, including the explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendant.

Although the plaintiff did not fully satisfy the first and third criteria due to significant delay, the court found the delay largely attributable to counsel’s inadvertence and concluded the defendant had not suffered material prejudice.

Balancing the interests of the parties, the court set aside the registrar’s dismissal order and extended the time to set the action down for trial.

The plaintiff moved to set aside a registrar's order dismissing the action for delay.

The delay was largely attributed to the plaintiff's former counsel, who had been caring for her terminally ill husband and inadvertently missed the deadline to set the action down for trial.

The court applied the Reid criteria contextually, finding that while the delay was not fully explained, it was due to inadvertence rather than contumacious conduct.

The court also found the defendants suffered no significant prejudice, noting that their destruction of relevant files shortly after the dismissal was a self-inflicted wound.

The motion was granted, the dismissal order was set aside, and the plaintiff was awarded costs of $15,000.

The defendants brought a motion for security for costs under r. 56.01(1)(d) and (e) of the Rules of Civil Procedure, alleging the corporate plaintiffs lacked sufficient assets in Ontario and that the action was frivolous and vexatious.

During the lengthy motion, additional affidavit evidence from the plaintiffs’ accountant later demonstrated that the plaintiffs’ financial circumstances had improved, leading the defendants to withdraw the security for costs motion.

The remaining issue concerned costs of the motion.

The court held the defendants were justified in bringing the motion based on the initial lack of financial disclosure and the plaintiffs’ poor financial condition at the outset.

Costs of $15,000 were awarded to the defendants, partly because the court had granted the plaintiffs an indulgence by admitting late affidavit evidence.

The plaintiff brought a motion to amend the statement of claim and substitute the correct corporate defendant in a slip and fall action arising from an accident in a No Frills grocery store.

The proposed defendant argued that the motion improperly attempted to add a new party after the expiry of the two‑year limitation period under the Limitations Act, 2002.

The court held that the plaintiff failed to establish discoverability to extend the limitation period, as there was no evidence rebutting the statutory presumption that the plaintiff knew the identity of the proper defendant when the accident occurred.

However, applying the misnomer doctrine under s. 21(2) of the Limitations Act, 2002 and the principles from appellate authority, the court found that the intended defendant would have understood that the litigation was directed at it despite errors in the name and address.

The amendment therefore constituted correction of a misdescription rather than the addition of a new party.

Leave to amend the claim and correct the defendant’s name and address was granted.

The moving defendants sought to set aside a noting of default and to strike the statement of claim.

Applying the principles governing relief from default, the court considered the conduct of the parties, the promptness of the motion, the complexity and value of the claim, and the absence of prejudice to the plaintiff.

The court set aside the noting of default to allow the defendants to defend the action.

On the accompanying motion to strike, the court found the pleading failed to comply with Rule 25.06(1) because it contained almost no material facts, consisted largely of lists of alleged wrongs, and was largely unintelligible.

The statement of claim was therefore struck in its entirety with leave to amend.

The plaintiff moved under Rule 37.14 to set aside a registrar’s order dismissing the action for delay after the matter was not set down for trial following a status notice.

The court applied the contextual approach endorsed in Scaini v. Prochnicki and considered the four Reid v. Dow Corning criteria: explanation for delay, intention to proceed, promptness of the motion, and prejudice to the defendants.

Although the litigation had experienced significant delay largely attributable to plaintiff’s counsel, the court found the failures resulted from inadvertence rather than deliberate disregard of the Rules of Civil Procedure.

The defendants failed to demonstrate meaningful actual prejudice beyond generic concerns about faded memories, particularly because examinations for discovery had already occurred.

Balancing the interests of the parties, the court set aside the dismissal, dispensed with mandatory mediation to avoid further delay, and ordered the plaintiff to set the action down for trial within 30 days while paying costs to several defendants.