Emily Alexandra Graham

The defendant brought a motion seeking production of invoices issued by the plaintiff to a third party for consulting services during a period when the plaintiff was also billing the defendant.

The plaintiff resisted production on the basis that the documents were irrelevant and not within his possession or control.

The court held that the requested invoices had potential relevance to the interpretation of the parties’ contractual billing arrangement and could inform whether the plaintiff customarily billed on a fixed-fee basis.

The court concluded that, had the documents remained in the plaintiff’s possession, they would have been producible and directed that the plaintiff not object to the third party producing the documents.

Costs were reserved to the trial judge but fixed at $3,000.

The defendants brought a motion to compel answers to undertakings and refusals arising from the plaintiff’s examination for discovery in a commercial dispute alleging breach of contract, breach of fiduciary duty, and misuse of proprietary information following the departure of key employees to a competitor.

The court applied the relevance principles under Rules 31.06 and 30.02 of the Rules of Civil Procedure and the governing jurisprudence on discovery scope.

Some questions and undertakings were ordered answered where they were relevant to damages, business dealings, or the alleged misuse of confidential materials, while others were refused as speculative or unrelated to the pleaded issues.

The court also addressed requests for commercially sensitive documents, ordering production of certain manuals and a DVD containing returned documents subject to a confidentiality agreement but rejecting a “counsel eyes only” restriction.

The plaintiff was ordered to provide outstanding undertakings and answers within 45 days and to attend for a further seven hours of discovery.

Following dismissal of an application seeking a declaration that retention bonuses constituted pensionable earnings under a pension plan, the court determined the issue of costs.

The unsuccessful applicant sought to have his costs paid from the pension trust fund.

Applying the pension trust approach discussed in appellate authorities, the court held that costs may be payable from a pension fund where proceedings ensure proper administration of the trust or benefit all beneficiaries.

Because the claim sought increased benefits for the applicant alone and was adverse to other beneficiaries, costs could not be ordered from the trust fund.

Despite the applicant’s loss, the court exercised discretion to order no costs given the ambiguity of the plan terms, the novelty of the issue, and the applicant’s good faith.

The applicant sought a declaration that retention bonuses payable under an amended employment agreement constituted pensionable earnings under a multi-employer pension plan for purposes of calculating pension benefits.

The court considered the plan definition of “pensionable earnings,” which included wages, salary, and other amounts forming a regular and integral part of a member’s remuneration.

The applicant argued the bonuses were regular compensation tied to continued employment, while the plan administrator argued they were ad hoc payments replacing a severance-trigger provision.

The court held that although the payments occurred on fixed dates, they were not a regular and integral component of remuneration within the meaning of the plan.

The application was dismissed and the bonuses were found not to be pensionable earnings.