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Legal Blog:
Jul
13
2017
Security for Costs Construction
Yuanda Canada Enterprises Ltd. Pier 27 Toronto Inc. 2017 Ont SCJ (Master)
Motion for security for costs against a B.C corporate plaintiff whose substantial lien had been bonded off by a non-party. The Master held that the test to obtain leave for the motion was whether the defendant had established that it had good reason to believe that the plaintiff had insufficient assets in Ontario to pay costs. This meant that the defendant had to show indicia of insolvency, not just rely on conjecture or speculation. The motion was unsuccessful because the admitted holdback was $1.3 million. The defendants claimed setoff and a counterclaim for far more than that. This was not sufficient because the defendants did not show that they had retained the basic holdback (and therefore did not necessarily have a setoff right). Further, the security to vacate the lien was posted by a non-party and usual procedural fairness to level the playing field did not arise. In obiter, the Master also noted that most of the action would have been taken up with the counterclaim and that he was loathe to have the plaintiff pay security for costs to defend itself.
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13
2017
Expert Evidence
Bruff-Murphy v. Gunawardena 2017 Ont CA
A trial judge’s gatekeeper function for expert witnesses does not stop once the expert has been qualified as expert capable of giving testimony. It continues while the testimony is being given. In this case, the trial judge recognised that the expert had crossed the line from objective witness to defence advocate in a personal injury jury trial and did not exclude the evidence or alert the jury to the problems with it. The court allowed the appeal and ordered a new trial. The court did agree that the plaintiff’s lawyer was not allowed to cross-examine the expert on the other cases in which the expert’s testimony was criticised by a trial judge.
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