Adrian C. Lang

Following a prior decision staying a motion for summary judgment pending discovery, the court addressed costs of the motion.

The responding party sought substantial indemnity costs on the basis that the motion had been unreasonable and premature, while the moving parties requested partial indemnity costs payable in the cause.

The court considered Rule 20.06 of the Rules of Civil Procedure and the circumstances surrounding the premature motion.

Although the motion had disrupted the orderly discovery process, the court concluded that much of the work product would remain useful in the continuing litigation.

The court exercised its discretion to award a fixed costs amount rather than substantial indemnity or costs in the cause.

A non-party sought leave to appeal an order requiring production of decades of corporate financial statements in connection with a summary judgment motion.

The order, originally made by a master and upheld on appeal, required production of financial statements of a pharmaceutical company alleged to be carrying on the business of a predecessor company whose sale generated royalty and option agreements benefiting the plaintiffs.

The moving party argued that conflicting decisions existed and that the order was incorrect because the documents were irrelevant, disproportionate, and improperly required disclosure from a non-party.

The court held that the alleged conflicting decisions involved different procedural stages and discretionary contexts, and therefore did not conflict in principle.

It further found the financial statements had a semblance of relevance to issues of liability, including whether the successor company continued the predecessor’s business.

Leave to appeal was refused.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claims for breach of non-competition and non-solicitation agreements.

The plaintiff opposed the motion, arguing it was premature as the defendants had failed to produce relevant documents and there were significant credibility issues between the key affiants.

The court agreed with the plaintiff, finding that the motion was premature and could not be disposed of without full discovery and the exchange of affidavits of documents.

The motion for summary judgment was stayed pending the completion of these steps.

The defendants brought a Rule 21 motion to strike an amended statement of claim on the basis that it disclosed no reasonable cause of action and was an abuse of process due to a related proceeding.

The court applied the stringent Rule 21 test and held that most of the pleaded causes of action—including breach of an implied contractual duty of good faith, inducement of breach of duty, inducement of breach of fiduciary duty, and intentional interference with economic relations—were not plainly doomed to fail and therefore should proceed.

However, the conspiracy claim failed to properly plead the necessary elements and was struck with leave to amend.

The request to stay the proceeding due to a separate action involving a solicitor and law firm was rejected because the parties and subject matter were not the same.

Costs were awarded to the responding parties.

Following a motion concerning amendments to a statement of claim and the scope of discovery, the court addressed costs after the parties were unable to agree.

The moving party had largely succeeded in obtaining amendments and discovery relief, although some proposed amendments were refused.

Applying the factors under Rule 57 of the Rules of Civil Procedure, the court held that costs should follow the result but reflect the partially divided outcome.

The court reduced the moving party’s claimed fees to remove work unrelated to the motion and applied a further percentage reduction to account for unsuccessful portions of the amendments.

Partial indemnity costs and reduced disbursements were awarded to the moving party.

The moving party sought leave to amend its statement of claim to add an alternative theory of liability alleging negligent hiring and supervision of a sales representative by an energy company, and also requested settlement of a discovery plan regarding documentary production and discovery scope.

The court applied Rule 26.01 of the Rules of Civil Procedure, emphasizing that amendments should be granted unless they would cause non-compensable prejudice or are clearly impossible of success.

The court held that negligent hiring and supervision constitute a recognized cause of action and that the proposed amendments disclosed a tenable claim, though certain phrases were struck for being prejudicial, argumentative, or lacking material relevance.

The court permitted the amendments with modifications and ruled on disputed discovery requests, allowing several document productions subject to limitations for relevance and proportionality.

Following dismissal of jurisdiction motions brought by several foreign tobacco companies in a health care cost recovery action, the court determined costs.

The unsuccessful moving parties argued that earlier evidentiary and procedural steps constituted separate proceedings and sought substantial costs for those steps.

The court rejected that characterization, holding that all preliminary steps formed part of the overall jurisdiction challenge and that distributive costs awards based on success on individual steps should be avoided.

Applying Rule 57.01 factors and general costs principles, the court found the responding party was the successful party and entitled to costs, subject to reductions reflecting partial success on certain evidentiary and motion issues.

The court awarded partial indemnity costs of $425,000 plus disbursements, allocating liability between two groups of moving defendants.

Following competing summary judgment motions in a civil commercial dispute, the court addressed the issue of costs.

The plaintiff’s summary judgment motion had previously been dismissed, while the defendant’s cross‑motion was found premature and allowed to be brought again after discoveries.

The plaintiff argued that the defendant should not receive costs because it withdrew one cross‑motion and the remaining motion was premature.

The court found that misleading and contradictory evidence advanced by the plaintiff undermined the litigation process and forced the defendant to bring the cross‑motions.

Considering the factors in Rule 57.01 of the Rules of Civil Procedure, the court awarded the defendant substantial indemnity costs.

The defendant brought a motion for summary judgment seeking dismissal of the plaintiff’s claim as statute-barred under both the former and current Limitations Act regimes.

The moving party argued that, even accepting the plaintiff’s evidence at its highest, the limitation period had expired.

The court acknowledged that the limitation argument had merit but found that credibility issues and the incomplete evidentiary record made summary determination inappropriate.

The court held that a full trial and discoveries were necessary for the trier of fact to properly assess the evidence and refine the issues.

The motion was adjourned sine die with leave to renew the limitation argument on notice.

The Crown brought an action under the Tobacco Damages and Health Care Costs Recovery Act against several domestic and foreign tobacco companies, claiming $50 billion for health care costs related to tobacco disease.

Six foreign defendants brought motions to set aside service ex juris and stay or dismiss the action, arguing the Ontario court lacked jurisdiction simpliciter.

The court dismissed the motions, finding that the Crown had established a good arguable case that the foreign defendants conspired and acted in concert to commit tobacco-related wrongs, establishing a real and substantial connection to Ontario.