Allegation of a breach of the deemed undertaking rule (Rule 30.1.01) by PSG’s principal, Zoran Radonjic.
Motion by the defendant (Mr. Libfeld) to stay the action or prohibit PSG from presenting specific evidence.
Ruling Highlights:
The court found that PSG breached the deemed undertaking rule by using discovery materials in a complaint to the Professional Engineers Ontario (PEO) without prior leave from the court.
Sanctions against PSG:
Prohibited from adducing evidence about payments by Mr. Libfeld to his engineering consultant.
Prohibited from introducing PEO’s findings in this case.
Ordered to pay $17,000 in penal motion costs to Mr. Libfeld by February 1, 2025, failing which further motions could result in the dismissal of PSG’s claim.
Reasoning:
The rule’s purpose is to protect privacy and promote full disclosure in litigation. Breaching it undermines these principles.
Mr. Radonjic acted without knowledge of the rule but primarily aimed to discredit a defense witness, which necessitated a deterrent.
The court opted not to stay the action since the breach was not willfully contemptuous, and public safety concerns tied to the PEO investigation could be legitimate.
A balanced approach was adopted to ensure fairness without unduly prejudicing the ongoing case.
