Brian Alan Babcock

The decision addresses a motion for production of solicitors’ files in an estate dispute.

The applicant, Gary Brian Prosser, sought production of files, notes, and records relating to real estate transactions and wills of the deceased, Anne Jaun, and the respondent, Rudy Jaun.

The court held that Gary was entitled to Anne’s solicitors’ files but not to Rudy’s, as the latter were protected by solicitor-client privilege and no exception or waiver applied.

The court also found that the applicant had not met the onus to establish a secret trust or a right to the trust documents.

The motion was granted in part, ordering production of Anne’s documents only.

This decision addresses the costs arising from a dismissed motion by two campers' associations to intervene in a proceeding.

Rock Solid Holdings Inc., the applicant in the main proceeding, sought costs.

The court, exercising its discretion under s. 131(1) of the Courts of Justice Act, awarded Rock Solid partial indemnity costs of $7,750 plus HST and disbursements of $829.08.

The court considered Rule 39.02(4)(b) regarding cross-examinations but "ordered otherwise" due to "bald assertions" in the affidavits filed by the proposed intervenors.

The costs were to be paid jointly and severally by the two campers' associations.

Two cottage associations, Trout Lake Campers’ Association and The Surprise Lake Campers’ Association, sought leave to intervene in an application by Rock Solid Holdings Inc. for a declaration regarding zoning for a gravel pit.

The court dismissed the motion for leave to intervene, finding that while the associations had an interest in the subject matter and could be adversely affected, their interests were adequately represented by the Lakehead Rural Planning Board, and their intervention would unduly delay the main application.

The court emphasized the narrow scope of the main application, which concerned only the zoning bylaw and historical use.

The plaintiff brought a motion seeking production of a defence medical examination report and later sought costs after the report was produced following service of the motion.

The defendants argued the motion was unnecessary and that no order for a medical examination had been made under s. 105 of the Courts of Justice Act, rendering rule 33.06(2) inapplicable.

The court held that disclosure obligations could still arise under the broader document production rules and found the defendant failed to produce the report promptly after receiving it.

Although the motion was resolved prior to argument, it was reasonable for the moving party to have brought it.

Partial indemnity costs of $1,000 were awarded, reflecting both the defendant’s delay and the plaintiff’s own failure to comply with an earlier order to set the action down for trial.

Decision on costs following motions by two defendants seeking leave to appeal an interlocutory order permitting the plaintiff to examine a key witness before trial under Rule 36.01(2) of the Rules of Civil Procedure.

The defendants sought over $28,000 in partial indemnity costs after obtaining leave to appeal, arguing the motion involved complex jurisdictional questions and issues of broader importance.

The plaintiff argued the claimed hours and duplication of work by multiple counsel were excessive and that success on the motion was partially divided.

Applying the discretionary framework under s. 131 of the Courts of Justice Act and Rule 57.01, the court held the claimed costs were excessive for a short motion and reduced the award significantly.

The court fixed costs of $3,000 to each of the two successful defendants payable by the plaintiff.

The plaintiffs moved to set aside a registrar’s order dismissing their action for delay under rule 48.14 of the Rules of Civil Procedure after failing to set the action down for trial by a deadline established at a status hearing.

Applying the contextual approach articulated in Court of Appeal jurisprudence, the court considered factors including the explanation for delay, inadvertence in missing the deadline, promptness in bringing the motion, and prejudice to the defendants.

Although the affidavit evidence explaining the delay was limited, the record demonstrated the action had progressed through discoveries and expert reports and that counsel’s failure to meet the deadline was inadvertent rather than deliberate.

The defendants filed no evidence of prejudice and other related actions arising from the same accident remained active.

Balancing the relevant considerations and the principle favouring determination on the merits, the court set aside the registrar’s dismissal order but declined to award costs due to the plaintiffs’ responsibility for the missed deadline.