Christopher J. Somerville

The defendants were successful on a motion to produce a document over which the plaintiff had asserted solicitor-client privilege.

The defendants sought costs of $11,406 on a partial indemnity basis, while the plaintiff submitted a bill of costs for $3,566.52.

The court found the defendants' claimed hours excessive for a relatively straightforward motion and emphasized the principle of proportionality.

Applying Rule 57, the court fixed costs payable to the defendants at $5,000 plus HST and disbursements.

On a discovery motion, the moving defendants sought an order compelling answers to undertakings and refusals arising from the plaintiff's examination for discovery in an action alleging breach of contract and defamation.

The court held that questions concerning the plaintiff's personal involvement with a tax shelter and related CRA dealings were irrelevant and constituted an impermissible fishing expedition.

However, questions directed to which former clients did not follow the plaintiff to his new dealer because of the defendants' conduct, and related revenue information necessary to quantify damages, were relevant and had to be answered.

The result was divided, and no costs were awarded.

Following two motions relating to the costs consequences of a discontinued civil action, the court addressed competing costs claims between the parties.

The plaintiff had been successful on both motions, including opposing the defendant’s motion under Rule 23.05 of the Rules of Civil Procedure seeking costs following discontinuance and obtaining costs related to an appearance before an assessment officer.

The court considered the discretionary costs framework under s.131(1) of the Courts of Justice Act and the factors in Rule 57.01, as well as the principle of proportionality under Rule 1.04.

Although the plaintiff was the largely successful party, the court reduced the amount claimed to reflect partial success and concerns about proportionality.

Costs were fixed at a reduced amount that the court considered fair and reasonable.

The defendant moved for an order requiring the plaintiff to pay costs following a notice of discontinuance, seeking an extension of time under Rule 23.05 of the Rules of Civil Procedure after failing to bring the motion within the 30‑day deadline.

The court applied the test requiring absence of prejudice and a reasonable explanation for delay.

While the plaintiff would not be prejudiced, the defendant deliberately chose an incorrect procedure by attempting to have costs assessed by an assessment officer rather than bringing a timely motion.

The court held that a mistaken strategic choice did not constitute a satisfactory explanation for delay.

The motion for an extension and costs was dismissed, and the plaintiff was awarded reduced partial indemnity costs relating to the assessment hearing.

In a civil action alleging negligent investment advice and related wrongs, the moving defendants sought directions under Rule 34.14 of the Rules of Civil Procedure following an adjourned examination for discovery of the plaintiff.

They argued that the examination had been improperly interrupted by excessive objections and instructions not to answer by opposing counsel.

After reviewing the transcript, the court found that although a number of objections had been raised, they did not amount to an abuse of the discovery process.

While the court criticized two instances of uncivil and sarcastic conduct by counsel during the examination, it concluded the examination had not been rendered futile and could continue rather than being restarted.

Costs were awarded to the moving defendants on a partial indemnity basis.