Todd Robinson

Kenneth Wise, counsel for Manoucher Baradaran and his family, moved for orders to remove himself as lawyer of record in two civil actions due to an irreparable breakdown in the solicitor-client relationship.

Manoucher Baradaran opposed the removal.

Applying principles from R. v. Cunningham and Konstan v. Berkovits, the court found an irreparable breakdown and granted the removal for Manoucher Baradaran (personally and as litigation guardian for his children).

The portion of the motion concerning Fariba Baradaran was adjourned due to improper service.

The court declined to order the immediate turnover of litigation files, noting it was outside the scope of a Rule 15.04 motion.

The defendant Landlord brought two ex parte motions seeking declarations that the plaintiff's construction liens against two leasehold properties had expired, and related orders to vacate registrations and dismiss actions.

The court found the Landlord failed to meet the high evidentiary onus required for ex parte relief, particularly regarding the dates of contract completion or abandonment under the Construction Lien Act (now Construction Act).

The motions were dismissed without prejudice, with a direction that they must be brought on notice to the plaintiff if pursued further.

This endorsement addresses the costs of a motion brought by HGR (defendants in a related solicitor negligence action) for trial together and common discoveries in two related actions.

The court had previously granted the request for trial together but dismissed common discoveries.

Both HGR and Mr. Hurst (the plaintiff) claimed substantial success.

The court found divided success but determined HGR was overall more successful.

HGR sought $12,000 in costs, and the court ordered Mr. Hurst to pay HGR $8,500.

The court also considered the COVID-19 pandemic as a special circumstance to defer the payment of costs.

Under Construction Incorporated (UCI) brought an ex parte motion seeking a declaration that O'Neil Davis's construction lien had expired, along with orders to discharge the lien and release funds posted to vacate it.

UCI's evidence, a lawyer's affidavit, was deemed insufficient by the Master due to lack of detail regarding efforts to confirm non-perfection, the status of UCI's own lien (for potential sheltering), and Davis's classification as a contractor or non-contractor, which affects lien expiry dates.

The Master emphasized the need for clear evidence for ex parte relief and offered UCI 14 days to file supplementary materials, failing which the motion would be dismissed without prejudice.

The defendant, ASG Technologies Group, Inc. (ASG), brought a motion to impose a discovery plan, which the plaintiff, The Manufacturers Life Insurance Company (Manulife), opposed, proposing its own version.

The primary dispute concerned the relevance and proportionality of various document categories requested by each party in a software licensing dispute.

The Master largely rejected Manulife's broad requests for "misconduct documents" and "valuation documents" related to ASG's other customers and internal financial data, finding them overbroad, disproportionate, or not sufficiently supported by the pleadings.

The Master also rejected ASG's requests for documents related to Manulife's internal dealings with its own customers regarding ASG's products.

The court imposed a discovery plan with specific, narrowed categories of documents to be produced and set deadlines for document exchange and examinations for discovery.

The plaintiff moved for the production of redacted and unproduced documents from the defendant prior to examinations for discovery, related to his termination from Correctional Service Canada (CSC).

The defendant opposed, arguing prematurity, privilege, and public safety concerns.

The court found the motion was not premature and ordered the production of unedited CCTV footage, rejecting privacy and public safety concerns regarding inmate identities, citing relevance to the plaintiff's alleged conduct and the deemed undertaking rule.

However, the court dismissed the request for an unredacted email concerning a parking lot incident, finding it irrelevant to the pleadings.

It also dismissed the production of five emails claimed under litigation privilege, finding the defendant failed to prove litigation was reasonably apprehended at their creation.

One email, initially misdated, was found to be litigation privileged as it was created after litigation commenced.

Two emails related to security clearances were also deemed irrelevant to the remaining pleaded issues.

The plaintiff contractor registered a construction lien for unpaid services and materials relating to the construction of a new residential home.

The defendant owner disputed the claim, arguing that the contractor abandoned the project, overcharged for extras that were part of the base contract, and left deficient work.

The court interpreted the fixed-price contract to determine the base scope of work, finding that some claimed extras were included in the base price while others were compensable.

After accounting for proven payments, loan credits, and a minor set-off for incomplete work, the court found the owner breached the contract by failing to pay.

The contractor was awarded a valid lien and judgment for $86,244.38 plus pre-judgment interest.

Following a motion to compel answers to undertakings and refusals from examinations for discovery, both parties sought costs.

The defendants had breached a consent timetable order by failing to answer undertakings for over 17 months, only providing answers in their responding materials.

The Master awarded the plaintiff $2,000 in costs, noting the motion was necessary to compel the undertakings and the defendants provided no satisfactory explanation for their delay.

The defendants (Owners) successfully moved for security for costs against the plaintiff (2232117 Ontario Inc.) under Rule 56.01(1)(d) of the Rules of Civil Procedure, arguing the corporate plaintiff had insufficient assets in Ontario to pay costs.

The motion also required leave under subsection 67(2) of the Construction Act.

The plaintiff conceded the threshold onus regarding insufficient assets but argued the order would be unjust due to a meritorious claim and tactical purpose.

The court found the merits neutral and no evidence of tactical purpose.

Considering the equitable imbalance where the Owners had posted security for the plaintiff's lien but had no security for their defence costs, the court found an order for security for costs to be just.

The plaintiff was ordered to post $48,000 in security for costs on a staged basis and pay $4,000 in motion costs.

The defendant, York Condominium Corporation No. 129 (the "Owner"), sought partial indemnity costs for its unopposed motions to amend pleadings.

The plaintiff, Brook Restoration Ltd. ("Brook"), opposed the costs and sought its own costs for preparing responding submissions.

The Master found that Brook had no obligation to consent to the amendments and that the Owner unnecessarily incurred costs by preparing full motion materials despite Brook's indication of non-opposition.

The Master denied the Owner's request for costs and also denied Brook's request for costs due to its non-compliance with a timetable order.

Each party was ordered to bear its own costs.

The plaintiff moved to compel answers to undertakings and refused questions from the examinations for discovery of the Toronto Region and Conservation Authority (TRCA) and the City of Toronto.

The plaintiff also sought an order compelling representatives of both defendants to re-attend examination.

The court adjourned the portion of the motion regarding undertakings sine die.

For the refused questions, the court ordered TRCA and the City to provide written answers to several specific questions, while dismissing others.

The court denied the request for re-attendance at oral examination, ordering that all further questions arising from ordered answers and undertakings be addressed in writing.

The moving parties, HGR, sought an order for the trial together of an employment action and a related solicitor negligence action, along with common documentary and oral discoveries.

The plaintiff opposed the motion, primarily on grounds of solicitor-client privilege.

The court granted the order for trial together, finding common questions of fact and law, overlapping damages, and a significant risk of inconsistent judicial findings if the actions were tried separately.

However, the request for common discoveries was dismissed due to insufficient evidence to determine waiver of solicitor-client privilege, emphasizing the court's duty to protect such privilege.

The defendants moved to set aside an order striking their statement of defence, their noting in default, and a default judgment, arguing they were unaware of the proceedings due to their former counsel's failure to communicate.

The court granted the motion, finding the defendants acted promptly, provided an adequate explanation for default (lack of knowledge due to former counsel's actions), and demonstrated an arguable defence on the merits.

The court emphasized the importance of hearing the matter on its merits and ordered the plaintiff to repay the security into court, conditional on the defendants complying with prior disclosure orders.

The defendants brought a motion to compel the plaintiff to answer questions refused during an examination for discovery, specifically seeking production of an adverse costs insurance policy (ACP).

The plaintiff argued the ACP was a blanket policy held by his law firm and protected by solicitor-client privilege.

The court dismissed the motion, following precedent that an ACP held in the name of a law firm, rather than the party, is not producible under Rule 30.02(3) or discoverable under Rule 31.06(4).

The plaintiff brought an ex parte motion on the day of closing for leave to issue a certificate of pending litigation against the subject property.

The dispute arose over whether the newly constructed home required a Tarion warranty.

The court dismissed the motion, finding that the equities favoured the defendants, as damages would be an adequate remedy and the plaintiff had not sought an extension of the closing date.

In a pre-trial motion regarding the admissibility of trial affidavit evidence, the moving party sought to strike the entirety of an affidavit.

The moving party argued the affidavit contained inadmissible, irrelevant, and opinion evidence without proper foundation.

The Master found that while the affiant had personal knowledge of certain communications, substantial portions of the affidavit lacked foundational knowledge or contained improper legal interpretation and argument.

The Master ordered specific paragraphs struck but admitted the remainder of the affidavit.

This decision addresses pre-trial motions brought by both Schindler Elevator Corporation and Walsh Construction Company of Canada, Bondfield Construction Company Limited, and Walsh Construction/Bondfield Partnership (collectively, WBP) concerning the admissibility of substantial affidavit evidence-in-chief tendered for trial.

Both parties raised numerous objections to statements in each other's affidavits, primarily on grounds of unqualified opinion, argument, legal conclusions, hearsay, speculation, and witness competency.

The Master ruled on these objections, striking various paragraphs or portions thereof and admitting others subject to weight, emphasizing that trial evidence must strictly comply with the rules of evidence, unlike evidence on motions or applications.

The plaintiff, Francis Aboagye, sought production orders against the defendant, The Regional Municipality of Peel Police Services Board, and the non-party, the Canadian Human Rights Commission (CHRC).

The motion against the Board was dismissed without prejudice, pending a motion to strike the statement of claim, as relevance could not be determined.

The motion against the CHRC for an unredacted occurrence report was dismissed with prejudice, as the report was found to be privileged in the CHRC's hands under the Wigmore criteria, having been provided by the Port Hope Police Service under an express condition of confidentiality.

This supplementary endorsement addresses a dispute over compliance with a previous court order for the production of minutes of settlement.

Schindler Elevator Corporation argued that the defendants (WBP) had excessively redacted the minutes beyond what was permitted, specifically regarding references to items in an exhibit.

The court found that WBP's additional redactions were not justified and went beyond the original order.

It was determined that knowing the specific items to which settlement compensation was allocated was crucial for Schindler to prepare for trial and assess potential double-recovery.

The court ordered WBP to produce a further version of the minutes of settlement, removing the impugned redactions while maintaining the confidentiality of specific settlement and allocation amounts.

This is a costs endorsement following a motion where the Au Defendants successfully sought the removal of the plaintiff's lawyers but were unsuccessful in obtaining production of litigation files.

The Au Defendants sought substantial indemnity costs, arguing the motion was avoidable.

The plaintiff opposed substantial indemnity and sought a reduction in partial indemnity costs.

The court found no basis for substantial indemnity costs, noting that declining voluntary withdrawal or opposing the motion did not constitute reprehensible conduct.

It acknowledged divided success but emphasized the Au Defendants' primary success.

The court awarded the Au Defendants $22,000 in partial indemnity costs.

Additionally, Clark Peddle, a non-moving defendant, was awarded $1,000 in costs for his Rule 39.03 examination, which was deemed largely irrelevant to the motion's disposition and unopposed by the plaintiff.