Alex W. Demeo

The defendant sought costs on a substantial indemnity basis after successfully moving to strike the plaintiffs' 'Notice of Withdrawal of Jury Notice' and after the plaintiffs abandoned their cross-motion to strike the jury notice.

The court found the plaintiffs' conduct in creating a non-existent form and ignoring the Rules of Civil Procedure warranted the court's disapproval.

The court awarded the defendant substantial indemnity costs fixed at $6,000.

The plaintiffs brought a motion for summary judgment seeking to dismiss the defendants' counterclaim and set-off claims, arguing that the two-year limitation period had expired, the issues were res judicata, and the claims constituted an abuse of process.

The dispute arose from a long-standing business relationship involving bank loan guarantees and a life insurance policy.

The court applied the Hryniak framework and found that there were genuine issues requiring a trial, including evidentiary gaps regarding the limitation period, potential waiver or estoppel, and the applicability of equitable set-off.

The motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

During a negligence trial concerning alleged diesel fuel contamination of lands belonging to a First Nation, the defendants brought a mid‑trial motion seeking to disqualify the plaintiff’s proposed expert geoscientist.

The defendants argued the expert report failed to comply with Rule 53.03 of the Rules of Civil Procedure because it was not prepared for the litigation and did not clearly set out the issues, opinions, and bases for those opinions.

The court held that the report was only minimally compliant with Rule 53.03 and did not sufficiently identify the substance of the proposed expert testimony, thereby prejudicing the defendants’ ability to prepare for trial.

However, completely barring the witness from testifying would be too harsh.

The court granted leave for the witness to testify as a fact witness, subject to strict limits on use of the report and possible supplementation.

The plaintiffs moved under Rules 53.03 and 53.08 of the Rules of Civil Procedure to abridge the time for service of multiple expert reports and to obtain leave to tender expert opinion evidence shortly before trial.

The defendants opposed the late service, arguing prejudice due to the cumulative effect of numerous expert reports served days before the scheduled six‑week trial.

The court held that the late service undermined the purpose of Rule 53.03, which is to facilitate orderly trial preparation through adequate notice of expert opinion evidence.

While the evidence was relevant and probative to significant damages claims arising from a traumatic brain injury, the defendants required a fair opportunity to respond.

Leave was granted to admit the expert evidence, but the trial was adjourned and the defendants were given time to prepare responding expert reports.

Costs decision following a motion seeking production of further and better affidavits of documents and cross‑examination on the supplementary affidavit of documents in environmental contamination litigation.

The defendants were successful in obtaining an order requiring the plaintiffs to serve a complete sworn supplementary affidavit of documents after the plaintiffs failed to comply with an earlier case management order.

However, the plaintiffs successfully resisted a request for cross‑examination on the affidavit of documents and defeated allegations of contempt seeking substantial indemnity costs.

Applying the discretion under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed costs based on overall success, proportionality, and reasonableness.

Partial indemnity costs were awarded but reduced to reflect the plaintiffs’ success on certain issues.