Derek Michael Leschinsky

Following the plaintiff’s successful opposition to a motion for particulars in complex competition litigation, the court addressed the quantum of costs payable.

The plaintiff sought partial indemnity costs of $70,000 out of approximately $106,569 incurred, while the defendants proposed $42,055.

The court accepted that the litigation and motion were complex, involved extensive documentation, cross-examinations, and several days of argument, and that the plaintiff’s counsel’s rates and time were reasonable.

However, reductions were warranted because a cross-motion to strike affidavits was unnecessary and withdrawn, and certain document review costs related to the broader action rather than the motion itself.

The court fixed reasonable partial indemnity costs at $60,000 inclusive of disbursements and HST.

The defendants brought a motion seeking an order compelling the Commissioner of Competition to provide further particulars of alleged misleading representations pleaded under paragraph 74.01(1)(a) of the Competition Act concerning premium text messaging services.

The defendants argued that the statement of claim failed to identify the specific alleged misrepresentations and related details necessary to prepare their defences.

The court held that the pleading sufficiently described the alleged deceptive marketing practices and that the requested particulars largely sought evidentiary details, which are properly obtained through discovery rather than particulars.

Given that the alleged representations could number in the hundreds or more and concerned matters within the defendants’ knowledge, the court exercised its discretion to refuse the request for further particulars.

The motion was therefore dismissed.