Carolynne J. Wahlman

This decision addresses the costs following the dismissal of the plaintiff TCA's claim against the defendant Art Gallery of Hamilton (AGH) after a five-day trial.

The AGH, as the successful party, sought partial indemnity costs of $94,152.91.

The plaintiff opposed, arguing for a denial or significant reduction of costs due to proportionality concerns, excessive fees, and "over-lawyering" by the AGH's counsel.

The court found the AGH's claimed fees to be excessive and disproportionately high given the modest nature and complexity of the dispute, and that the involvement of multiple lawyers in nearly every step was unreasonable.

The court fixed the AGH's costs at $62,000, inclusive of fees, disbursements, and taxes, specifically excluding costs for a contested motion regarding undertakings.

The plaintiffs brought a motion for leave to appeal the order of Carpenter-Gunn J. dated June 25, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the responding defendants in the fixed amount of $5,000.

The defendant brought a motion to set aside the administrative dismissal of his counterclaim for defamation.

The action and counterclaim had been dismissed for delay under Rule 48.14.

The court applied the Reid factors and a contextual approach, finding that the defendant failed to provide a reasonable explanation for the delay, relying only on a lawyer's hearsay affidavit rather than direct evidence.

The motion to set aside the dismissal was dismissed.

The plaintiffs brought a motion to compel the defendant property owner to fulfill undertakings and answer refusals from examinations for discovery, primarily concerning the production of an insurance adjuster's file.

The defendant brought a cross-motion to compel the plaintiffs to fulfill their own undertakings.

The court held that in third-party tort claims, an insurance adjuster's investigation is conducted solely in anticipation of litigation, meaning litigation privilege attaches to the adjuster's file from the moment they are retained.

The court upheld most of the defendant's refusals based on litigation privilege but ordered the production of redacted monthly property management reports.

The court also ordered the plaintiffs to provide particulars of out-of-pocket expenses and collateral benefits.