Michael Kealy was successful on a motion to set aside an administrative dismissal order. He was retained by LawPRO to act as the agent for the plaintiff’s lawyer to bring forward this motion, which concerned a dismissal order from July 2018. Notably, Associate Justice Wiebe agreed with Michael’s argument on the obligation of a defendant concerning a plaintiff’s disclosure at paragraph 51 of the decision:
“Mr. Kealy relied heavily on the argument that the defendants cannot sit back and rely entirely on plaintiff undertakings to produce the third party documents the defendants say they need for their defense. I agree with that argument when it relates to undertakings to get relevant documents from third parties, such as with the records of Drs. Khalil, Gobran, Pazucki and Healing Hands. The plaintiff may not have the power or control over these third parties to cause the necessary production. In these circumstances, either party can and should avail themselves of Rule 30.10, the rule which authorizes either party to move for third party production. The defendants should not get the benefit of an action dismissal for reasons of third party document non-disclosure they could have avoided with such measures. This is particularly the case where the plaintiff has demonstrated a good faith attempt to get these third party records that failed, such as in this case.” The decision can be reviewed in full at Amiri-Khorke v. Cohen-Rimmer, 2022 ONSC 14 (CanLII).