Executive Summary: Key Legal and Evidentiary Issues

• Scope and limits of examinations for discovery, including refusals and undertakings, and whether questions are properly “relevant” to the pleaded issues.
• Extent of a self-represented plaintiff’s obligation to obtain and produce third-party documents (banks, mediator, court, prior counsel) that may bear on discovery of loss and limitation defences.
• Dispute over whether follow-up discovery questions and re-attendance amounts to an impermissible “second” discovery, versus completion of an interrupted examination.
• Application of proportionality and anti–“fishing expedition” principles to broad requests for confidential and potentially privileged materials from related family law and mediation processes.
• Ongoing documentary disclosure obligations, including supplementary affidavits of documents and proper articulation of claims of privilege over a former lawyer’s file.
• Enforceability of undertakings given on discovery, including what constitutes “best efforts” and the consequences of non-responsive answers by a self-represented litigant.

Background and facts

The case arises from a professional negligence and breach of contract claim brought by a self-represented plaintiff, Kathryn Ann Tammy Wilson-Dick, against her former lawyer, Joshua R. Bond, and his firm, Martin Sheppard Fraser LLP. The dispute centres on a residential property known municipally as 7 Fawell Avenue in Ontario and the legal work performed in connection with a refinancing and transfer of title.
The plaintiff purchased the property on February 14, 2014, initially financing it through a mortgage with First Ontario Credit Union. She later refinanced at a lower rate with another lender. Around April 2014, her then boyfriend, Keith Birnie, moved into the property; she alleges he did not contribute funds to the purchase. In early 2017, Keith proposed further renovations and, according to the plaintiff, advised that she needed a larger mortgage, which could be obtained from his bank, the Royal Bank of Canada, provided both of them were on the mortgage. Keith’s advisor at RBC referred them to the defendant law firm to complete the necessary legal work.
The plaintiff alleges that on February 23, 2017, she and Keith met with the individual defendant and were presented with documents, including a transfer of the property from her sole ownership to a joint ownership with Keith. She claims she was “instructed to sign” these documents and that she was not properly advised that she was transferring an interest in the property or that it would be held as joint tenants. The relationship later broke down, and she and Keith separated on February 21, 2019.
In January 2021 she commenced this civil action, asserting that the defendants failed to explain the nature and effect of the transfer and mortgage transaction, breached the retainer, and were professionally negligent. She seeks damages of $400,000 plus interest and costs. The defendants deny liability and plead, among other things, that they followed the instructions of both the plaintiff and Keith, that they explained all documents, that the plaintiff understood and signed of her own free will, and that the claim is barred by the Limitations Act, 2002. The property also features in related family law proceedings between the plaintiff and Keith, and those proceedings become important when assessing what the plaintiff knew about the transfer and when she knew it for limitation purposes.

Procedural history leading to the motions

Following issuance of the claim on January 21, 2021, the defendants served their statement of defence on March 1, 2021 and later served an affidavit of documents on September 15, 2022. In June 2023, they brought a motion to dismiss the action for delay. On that motion, Associate Justice McGraw declined to dismiss the action but imposed a timetable: examinations for discovery were to be completed by October 13, 2023, and undertakings arising from those examinations answered by November 17, 2023. The plaintiff was ordered to pay the defendants $1,500 in costs for that motion, within 90 days.
The plaintiff’s statement of claim was amended on September 7, 2023. She was examined for discovery on October 4, 2023, and a transcript of that examination was filed with the court. Her then counsel was later removed from the record by order on July 11, 2024, and on August 9, 2024, she served a Notice of Intention to Act in Person, proceeding thereafter as a self-represented litigant.
Two further interlocutory motions followed, which are the subject of the decision released on January 8, 2026 by Associate Justice J. Kriwetz of the Ontario Superior Court of Justice. Some issues relating to a proposed amended statement of defence and a corresponding reply were resolved before argument and did not require adjudication in this decision.

The plaintiff’s motion

The plaintiff brought a motion seeking several procedural orders. She asked the court to declare that her discovery undertakings had been fully satisfied and that no further or follow-up questions would be permitted. She also sought to have the defendants noted in default for allegedly failing to file an amended statement of defence, or, in the alternative, an order compelling them to rely on their original defence only. In addition, she requested permission to file a reply, a direction sending the matter to a pre-trial conference at a specified date and time, permission to file a supplemental affidavit of documents, and costs of the motion.
The court rejected her request to have her undertakings declared complete and to foreclose further discovery. The judge held that not all of the undertakings had been satisfactorily answered and emphasised that questions arising from undertakings or improperly refused questions are, in essence, part of a continuing examination that has not yet been completed. Relying on Senechal v. Muskoka (District Municipality), the court explained that when an answer to a proper question genuinely gives rise to follow-up questions, the examining party is entitled to complete the discovery as if the answer had been given at the outset. A party being examined cannot unilaterally confine the process by insisting that all further questions be in writing or that no re-attendance occur.
Her request for an order fixing a specific date and time for a pre-trial conference was also dismissed. The Rules of Civil Procedure prescribe a clear sequence: a party must first set the action down for trial, after which a pre-trial conference can be scheduled in accordance with the rules. To grant the requested order would effectively circumvent this structure.
The plaintiff further sought an explicit order permitting her to file a supplemental affidavit of documents. The court held such relief unnecessary. The rules already require ongoing disclosure, and subrule 30.07 obliges a party, upon discovering new relevant documents or inaccuracies in a prior affidavit of documents, to serve a supplementary affidavit disclosing additional materials. Because that mechanism already exists and binds all parties, no special order was required.
In light of these findings, the court dismissed the plaintiff’s motion in its entirety and reserved the issue of costs to the end of the reasons.

The defendants’ motion on refusals, undertakings, and further discovery

The defendants’ cross-motion sought to compel the plaintiff to answer specific refusals and undertakings from her October 2023 discovery and to re-attend to be examined on the resulting answers. They also sought leave (which ultimately became unnecessary due to pre-hearing resolution) to file an amended statement of defence and an order for costs. To support their motion, they filed a compendium containing a detailed undertakings and refusals chart, relevant portions of the discovery transcript, and draft orders.
Before turning to each question, the judge reviewed the governing legal principles on scope of discovery. Under subrule 31.06, a person examined must answer, to the best of their knowledge, information, and belief, any proper question relevant to any matter at issue. Case law such as Ontario v. Rothmans Inc. confirms that discovery is bounded by the pleadings: questions must be relevant to the pleaded issues, and the rules do not sanction pure “fishing expeditions” designed to search for unpleaded claims or defences. At the same time, courts have traditionally allowed broad questioning where there is at least a semblance of relevance, subject to the modern emphasis on proportionality under Rule 29.2.03. Courts can and do restrain abusive or overly burdensome discovery, but proper questions that may lead to evidence influencing the outcome—directly or indirectly—should be permitted.

Key refusals and orders relating to third-party records

Several refusals concerned the plaintiff’s obligation to seek and produce documents from third parties. One refusal involved a request that she contact RBC for a copy of its mortgage file for the 2017 refinancing. The defendants argued that such records could shed light on her knowledge of the transfer and mortgage arrangements, which is central to the limitation defence. The plaintiff resisted, claiming the request was speculative, outside her control, possibly privileged, and a fishing expedition. After probing what, if anything, she had actually done to obtain the information (her efforts were, at best, minimal and not in writing), the court held the information plainly relevant and directed her to write to the RBC branch that arranged the mortgage, provide the written request to defence counsel, and then share any response and documents received.
Another refusal pertained to records of any appraisal that may have been obtained in 2015 when First Ontario placed a mortgage on the property. The defendants viewed this as relevant to damages, given the magnitude of the plaintiff’s $400,000 damages claim. The plaintiff suggested the appraisal may not exist and was beyond her control. However, the court noted that she had admitted at discovery she would “have to look” to determine whether such an appraisal had been done and that there was no evidence of any actual search. She was ordered to search her records, produce any appraisal in her possession, and, if none was found, to write to First Ontario to inquire whether an appraisal exists and, if so, to obtain and produce it.
The defendants also sought the full file of mediator Daryn Veld and drafts of a cohabitation agreement prepared for the plaintiff and Keith. They argued this material could illuminate how the parties characterized their ownership of the property and what the plaintiff understood about that ownership—again, central to the issues of negligence and limitations. The plaintiff resisted on grounds of confidentiality, alleged privilege, overbreadth, and the “unsigned” nature of the drafts. The court held the materials clearly relevant and noted that while they may contain confidential information, Ontario’s deemed undertaking rule and related protections allow compelled disclosure to be used strictly within the litigation, thereby addressing privacy concerns. The court found no privilege attaching to the mediator’s file or unsigned drafts on the basis advanced and ordered the plaintiff to write to Mr. Veld for his file and any draft agreements and to produce the resulting documents or correspondence.
The court then addressed a refusal to produce the continuing record from the family law proceedings between the plaintiff and Keith. Defence counsel explained that they had been able to obtain only portions of this record from the public court file and that some materials were accessible only to parties. The plaintiff argued that the request was disproportionate, that the pleadings in the family matter were only allegations and not evidence, that litigation privilege would be breached, and that the request was a fishing expedition. The court rejected these arguments. Litigation privilege in the family matter had expired with that litigation. Given that the property’s ownership and division were likely central issues in the family case, and that the defendants’ limitation defence hinges on when the plaintiff appreciated her loss and its cause, the court held the materials to be plainly relevant. The plaintiff was ordered to request copies of the family law continuing record from the appropriate court and to provide copies of any documents received to the defendants.
Lastly, the defendants sought production of the entire file of the plaintiff’s former family law lawyer, Ms. VanderSpek. The court recognized that such a request engages solicitor-client privilege and accepted that privileged material need not be produced. Still, the judge concluded that not all documents in the file would necessarily be privileged, and that some may be relevant and producible. To manage this, the plaintiff was ordered to request the entire file from her former counsel. Once received, she was to serve a supplementary affidavit of documents, listing relevant non-privileged documents in one schedule and privileged documents in another, with dates and sufficient descriptions, and to state the ground of privilege. Non-privileged documents were to be produced to the defendants, and the defendants were given liberty to challenge any privilege claims on a further motion, if warranted.

Undertakings and enforcement of “best efforts”

The court then turned to undertakings given at discovery. It reiterated that an undertaking—whether by counsel or the witness—is an acknowledgement that a question is proper but cannot be answered at that time. Under the rules, an unanswered undertaking becomes a deemed refusal after 60 days, exposing the party to a motion to compel answers.
One undertaking involved a reference in a January 2017 letter stating that the plaintiff and Keith had prepared a list of contributions with prices, referred to as an “attached” document. The plaintiff undertook to use her “best efforts” to locate and produce that attachment, later responding that she had been unable to find it and believed it did not exist. The court invoked Gheslaghi v. Kassis, where “best efforts” was interpreted as a genuine and substantial search, not a cursory inquiry. The judge held that the plaintiff’s bare assertion did not demonstrate meaningful efforts and ordered her to provide details of the steps she had taken to locate the document.
Other undertakings had simply not been answered substantively. For example, the plaintiff had promised to provide a breakdown of redactions in invoices from her former family lawyer and to explain how portions of the fees related to her claim against the defendants. The court found her written response non-responsive and ordered a full and proper answer.
Similarly, she had undertaken to explain how her damages were quantified but later asserted that the question was improper and unanswerable. The court held this position “completely untenable,” given that she herself had claimed $400,000 in damages, and ordered a proper explanation of her damages calculation.
Another undertaking required her to clarify, in the context of a joint retainer, whether it was her position that the defendant lawyer ought to have provided specific legal advice regarding her situation. She responded with a vague, argumentative statement and an equivocal “if an answer is needed, the answer is yes.” The court found the question and undertaking clear, deemed her answer inadequate, and ordered a full, clear, and proper response.
Finally, she had undertaken to identify any witnesses on whom she intended to rely at trial and had answered only “Will advise.” The court ruled this was not a proper undertaking answer and directed her to provide the list within the prescribed timeline.

Continuation of discoveries and supplementary disclosure

In addition to compelling specific answers, the court made several structural orders. It directed that within 60 days after providing the ordered answers to refusals and undertakings, the plaintiff must attend a continuation of her examination for discovery so that the defendants might ask proper follow-up questions arising from the new material. This explicitly rejected her attempt to block any further oral discovery.
The court also required that, in the course of fulfilling these obligations, if the plaintiff discovered new relevant documents not already disclosed in her affidavit of documents, she must include them in a supplementary affidavit. This reinforced the ongoing nature of documentary disclosure and aligned with the obligations already found in the rules.

Absence of policy terms

The dispute in this case is not centred on any insurance policy or contractual wording between an insured and an insurer. Rather, it concerns allegations of solicitor’s negligence and breach of retainer in connection with a real estate financing and transfer. The decision therefore does not discuss insurance policy terms or specific clauses of any insurance contract. The only contractual context discussed relates to the solicitor-client relationship and the professional services the defendants were retained to perform, but no discrete contractual clauses are parsed or interpreted in the reasons.

Costs and overall outcome

On costs, both sides sought awards. Because the plaintiff was entirely unsuccessful—her own motion being dismissed and the defendants’ motion being granted—the court held she was not entitled to any costs. While the plaintiff had filed her own costs outline totalling $6,303 and the defendants’ revised costs outline on a partial indemnity basis totalled $6,436.54, the judge viewed the defendants as having been completely successful and noted that the plaintiff’s own outline helped show what she considered a reasonable level of exposure. After considering the relevant factors under Rule 57.01, the court exercised its discretion to fix costs at $6,000 inclusive of fees, disbursements, and taxes, payable by the plaintiff to the defendants within 30 days.
In summary, this interlocutory decision does not resolve the merits of the professional negligence claim or award any damages. Instead, it clarifies and enforces the plaintiff’s discovery and disclosure obligations, compels her to obtain and produce a range of third-party and related-proceeding documents, mandates further discovery, and applies established principles on the scope of examinations, undertakings, privilege, and proportionality. The successful parties in this decision are the defendants, Joshua R. Bond and Martin Sheppard Fraser LLP, who obtained dismissal of the plaintiff’s motion, full success on their own discovery motion, and a monetary order for costs fixed in the amount of $6,000 in their favour in this decision.