Elizabeth Richards

The Plaintiffs sought costs on a partial indemnity basis after successfully opposing a motion for summary judgment and a Rule 21 motion to strike a claim concerning a breach of their s.6 Charter Mobility Rights.

The Defendant largely agreed to the quantum of costs but disputed the portion related to the novel Charter issue.

The court awarded $30,000 in costs, excluding the $7,000 associated with the novel Charter claim, which was ordered to be 'in the cause'.

The defendant brought a motion for summary judgment to dismiss the plaintiffs' claims for negligence and defamation on the basis that the two-year limitation period had expired, and a motion to strike the plaintiffs' claim for a breach of their section 6 Charter mobility rights.

The court found that the plaintiffs could not have reasonably discovered the material facts of their claim until the release of the Iacobucci Inquiry Report, meaning the limitation period had not expired.

The court also refused to strike the section 6 Charter claim, finding it was not plain and obvious that the claim would fail given the practical restrictions on the plaintiffs' ability to leave Canada.

Both motions were dismissed.

The plaintiffs brought a motion to compel production of documents from the federal government in aid of cross-examination on an affidavit filed for a pending summary judgment motion based on limitation periods.

The government argued the requested documents were irrelevant because the plaintiffs had never seen them and therefore they could not affect the discoverability analysis under the Limitations Act, 2002.

The court held that documents relating to alleged defamatory communications and investigative conduct were relevant to determining when the cause of action accrued and when the limitation period began to run.

Given the relationship between the merits of the claims and the limitation defence, production was ordered.

The court also directed counsel to consider whether the summary judgment motion should be postponed until documentary production and discovery were completed.