Andrew Burns

The moving party brought a motion for leave to appeal an interlocutory order.

The Divisional Court dismissed the motion for leave to appeal without costs.

This is a costs endorsement following multiple motions heard on April 7, 2017.

The court addressed costs for motions concerning the production of Marineland's representative for discovery and the exchange of affidavits of documents.

For the representative production, neither party was awarded costs due to their respective conduct, as both contributed to delays.

For Marineland's motion for Demers to produce a further and better affidavit of documents, Marineland was awarded partial indemnity costs of $3,500, as Demers had initially resisted disclosure, putting Marineland to unnecessary expense.

Demers' motion for Marineland to produce a further and better affidavit of documents was dismissed without costs, as Marineland had delayed particularizing its claim, contributing to the necessity of Demers' motion.

The parties brought cross-motions concerning discovery.

Marineland sought an order for Phillip Demers to deliver a further and better Affidavit of Documents and for John Holer to be produced as Marineland's representative for examination for discovery.

Demers sought a further and better Affidavit of Documents from Marineland and the production of a different alternate representative.

The court ordered Marineland to produce John Holer for examination for discovery under specific health-related conditions, with Carmen Grimaldi as an alternate, for a total of seven hours.

Demers was ordered to provide an updated Affidavit of Documents including additional documents and a detailed Schedule B. Demers' request for a further affidavit of documents from Marineland was denied at this stage, but Marineland was ordered to particularize its damages claim by August 1, 2017.

Demers was not required to provide hard copies or lists of publicly accessible electronic records.

The plaintiff, a scooter retailer, sued a competing retailer for defamation based on statements made by the defendant's principal to private investigators hired by the plaintiff.

The court found that the statements, which accused the plaintiff of unethical and illegal business practices, were defamatory and published.

The court awarded $10,000 in general damages but declined to grant a permanent injunction, finding no evidence that the defendants would continue to make defamatory statements after the judgment.

Following a motion for interim injunctive relief in a civil action alleging conspiracy and tortious conduct related to protest activities, the court addressed the issue of costs.

The moving party had obtained a limited interim injunction restraining certain conduct but was denied broader relief, including a proposed order against unidentified persons and further examination of the defendant.

The defendant argued that success on several issues and his status as a public interest protester justified either a costs award in his favour or no costs order.

The court held that the moving party was the successful party overall because it obtained injunctive relief restraining unacceptable conduct.

However, because the moving party sought overly broad relief that was largely denied, the claimed costs were reduced and fixed at a lower amount.

Following dismissal of a motion seeking to have the respondent held in contempt of a prior court order concerning possession and transport of a killer whale, the court was required to determine costs.

Both parties sought substantial or full indemnity costs exceeding $250,000, with the moving party also claiming significant U.S. legal fees incurred in related foreign litigation.

The court reaffirmed that the successful party on a contempt motion is presumptively entitled to costs but retains discretion to depart from that result where warranted.

The court declined to award costs against the successful responding party or deny it costs, finding the moving party had failed to meet the high burden of proving contempt beyond a reasonable doubt but had nonetheless brought the motion reasonably.

Costs were awarded to the respondent on a partial indemnity basis in the amount of $100,000 inclusive of disbursements and tax.

The applicants sought to file a Notice of Hearing under s. 127 of the Securities Act to reprimand Commission Staff and rectify alleged past non-compliance related to the delayed issuance of a prospectus receipt.

The Secretary returned the draft notice, stating only Staff could bring a s. 127 hearing.

The applicants moved for directions.

The Commission declined to decide whether a third party could ever seek a s. 127 hearing, finding that even if they could, the relief sought here was punitive and retrospective.

Relying on the Supreme Court's decision in Asbestos, the Commission held that s. 127 is a regulatory provision intended to be preventive and prospective, not to remedy alleged past misconduct or harm to private parties.