Christopher Wayne Phillip Goldson

Following an interlocutory motion concerning amendments to pleadings and document production, the court addressed costs.

The moving party had obtained leave to amend its statement of claim and partial relief for additional document production but was unsuccessful on a privilege issue that dominated the motion.

Applying s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that costs must be fair and reasonable in light of partial success and the relative importance of the issues.

The responding parties were found to have been successful on the principal issue argued, though their claimed costs and request for substantial indemnity were excessive.

Partial indemnity costs of $2,500 were awarded against the moving party, with no costs order involving another responding party who played only a minor role.

The plaintiffs brought a motion seeking leave to amend their amended statement of claim to add a new defendant and to compel further production of documents from several defendants.

The court granted leave to amend and ordered the corporate defendants to produce bank statements, cancelled cheques, and related financial records relevant to the impugned real estate transactions.

However, the plaintiffs’ request for production of documents contained in the real estate lawyer’s files was refused on the basis of solicitor-client privilege.

The court held that privilege belongs to the clients and is not waived merely because another party places its state of mind in issue.

The fraud exception to privilege was not engaged because a prima facie case of fraud had not yet been established.