Timothy M. Morgan

The moving party, a sub-subcontractor, brought a motion for further and better documentary production from the responding party contractor in a construction lien action.

The court ordered the responding party to produce all payment certificates related to the main contract, finding them relevant to the delay claims raised in the counterclaim.

The court also enforced an agreement between the parties to produce emails in their native PST format rather than 'near native' format, applying the Sedona Canada Principles.

Finally, the court ordered that affidavits of documents be provided in electronic format (Word or Excel) to ensure meaningful access to the voluminous productions.

Following summary judgment dismissing the plaintiff’s claim against all defendants, the court addressed supplementary costs submissions from a defendant who did not participate in the summary judgment motion and from several third parties added to the litigation by defendants.

The court reviewed the discretionary framework for costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

While plaintiffs are generally not liable for costs incurred by third parties, the court noted that such costs may be ordered where the third party proceedings flowed naturally from the plaintiff’s claim.

The court awarded the non‑participating defendant partial indemnity costs and exercised its discretion to award approximately half of the third parties’ requested costs against the plaintiff.

The appellant appealed a motion judge's decision declining jurisdiction over the respondents.

The Court of Appeal upheld the motion judge's finding that the real and substantial connection test had not been met, whether under the Muscutt or Van Breda framework.

The Court also found no basis to interfere with the motion judge's discretionary decision to decline jurisdiction on the basis of forum non conveniens.

The appeal was dismissed with costs.

The appellants appealed the dismissal of their motion for certification of a class action against Imperial Tobacco Canada Limited.

The proposed class action alleged that the respondent's cigarettes were defectively designed because they posed an unreasonable risk of igniting residential fires.

The Divisional Court upheld the motions judge's findings that the proposed class definitions were unacceptably merits-based, that a class action was not the preferable procedure due to overwhelming individual causation issues, and that the proposed litigation plan was unworkable.

The respondent's cross-appeal regarding costs was also dismissed.

The appellant appealed his conviction and sentence of two years less a day followed by three years' probation.

The Court of Appeal found no error in the trial judge's reasons for conviction.

On the sentence appeal, the Court found no error in principle, noting the trial judge appropriately considered the appellant's age of 78 and medical condition, which mitigated what would otherwise have been a three-year penitentiary term.

Fresh evidence regarding the appellant's medical condition was considered but did not alter the sentence, as it could be managed by prison authorities.

The appeal was dismissed.

The Crown appealed the respondent's acquittal on two counts of sexual assault following a jury trial.

The Crown argued the trial judge erred by excluding the respondent's statement to police, improperly leaving the defence of honest but mistaken belief in consent to the jury, and refusing to allow expert DNA evidence.

The Court of Appeal dismissed the appeal, finding that the complainant's evidence suffered from many frailties and improbabilities, and that any errors made by the trial judge were harmless and would not have affected the outcome.