Anthony T. Keller

Costs decision following a successful motion by defendants to set aside a default summary judgment.

The court considered whether the defendants, as the successful parties on the motion, were presumptively entitled to costs or whether the plaintiff should recover costs thrown away as a condition of setting aside the judgment.

The court held that where a default judgment is set aside, the non‑defaulting party may be compensated through costs thrown away even if unsuccessful on the motion.

As the plaintiff had complied with the Rules of Civil Procedure and the defendants failed to respond before judgment was obtained, fairness required compensating the plaintiff.

The plaintiff’s partial indemnity costs of responding to the motion were therefore included in costs thrown away.

The defendants brought a motion under r. 37.14 of the Rules of Civil Procedure to set aside a summary judgment obtained in their absence.

The judgment had been granted after the defendants failed to attend the motion, which they asserted occurred through mistake and lack of awareness of the motion date while self‑represented.

The court held that r. 37.14 grants a broad discretionary power to set aside orders where a party fails to appear through accident, mistake, or insufficient notice.

Considering the absence of deliberate disregard of the process and the policy favouring adjudication on the merits, the court exercised its discretion to set aside the summary judgment.

The defendants were ordered to pay costs thrown away and the action was restored to the trial list.

The court determined the appropriate quantum of costs following a motion where the successful party sought partial indemnity costs.

The responding party challenged the hourly rate claimed, time billed for preparation of an affidavit, and charges related to cross-examinations that did not proceed.

The court accepted the challenges regarding the hourly rate and certain cross‑examination-related charges but rejected the challenge to the affidavit preparation time, finding it necessary for the motion.

Costs were recalculated based on a reduced hourly rate and adjusted disbursements.

The court ordered payment of revised costs inclusive of disbursements.

During family law proceedings, the responding party brought an oral motion seeking directions regarding outstanding undertakings, refusals, and questions taken under advisement arising from questioning under oath.

The court considered thirteen disputed requests for production and further questioning.

Several requests were denied where no undertaking had been given, where the documents were not in the moving party’s control, or where the request was overly broad or irrelevant to the issues in dispute.

Limited additional disclosure was ordered for certain financial documents, including bank statements and credit accounts, and in one instance the responding party was directed to request documents from a government ministry.

The court also permitted limited re‑attendance for further questioning in relation to some ordered disclosures.

The parties jointly sought directions regarding the order in which two motions should be heard in a tender dispute action.

The plaintiff sought production of tender documents and related discovery concerning the defendant municipality’s historical tender practices, while the defendant brought a summary judgment motion arguing the claim could be resolved as a legal issue based on explicit tender terms.

The court held that the summary judgment motion was not framed solely as a question of law and that determining the legal issue could require a factual matrix concerning past tender practices.

Requiring the plaintiff to respond to the summary judgment motion without disclosure could be prejudicial.

The court directed that the plaintiff’s discovery motion proceed first.