Erica Johnston

This addendum to reasons on undertakings and refusals motions addresses Delta Plus Group's claim of litigation privilege over Refusal No. 10, which arose during the examination for discovery.

The court found that Delta failed to provide firsthand evidence from the document's creator to establish that the document was created for the dominant purpose of litigation, as required for litigation privilege.

Consequently, the court ordered Delta to answer the question.

In a complex commercial dispute stemming from a Share Purchase Agreement and consulting agreements, both the plaintiffs (the Dentes and related entities) and the defendants (Delta Plus Group and its subsidiaries) brought motions to compel answers to undertakings and refusals arising from examinations for discovery.

The court addressed various issues including the relevance of financial information, the accessibility of manual journal entries, the sufficiency of particulars for damage claims, and the assertion of litigation privilege.

The court ordered some productions and dismissed others, emphasizing the principles of relevance and proportionality in discovery.

Given the mixed results, the court also ordered that each party bear their own costs and allowed for further limited examinations for discovery.

The plaintiffs brought a motion seeking a declaration that certain communications with their lawyers, which were inadvertently left on the defendants' email servers after a share purchase transaction, were subject to solicitor-client privilege.

The plaintiffs also sought leave to file a supplementary affidavit after cross-examinations.

The court granted leave to file the new affidavit.

On the privilege motion, the court found that the plaintiffs' law firm did not represent the target companies during the transaction, meaning no joint privilege passed to the purchaser.

The court also held that the plaintiffs did not waive privilege by using the company email servers, as the disclosure was inadvertent and they maintained a reasonable expectation of privacy.

The court reviewed the documents and declared which ones were privileged.

Following a trial where the plaintiff contractor obtained judgment for unpaid services, the parties could not agree on costs.

The plaintiff sought substantial indemnity costs based on an offer to settle.

The court found the offer did not trigger Rule 49.10 consequences because it was ambiguous regarding costs and, when properly calculating pre-judgment interest, the judgment was slightly less favourable than the offer.

The court awarded the plaintiff partial indemnity costs of $32,000 plus disbursements, taking into account proportionality, the defendants' partial success on a set-off, and a deduction for a mediation fee incurred due to the plaintiff's cancellation.

North Bay Capital Investments Ltd. (North Bay) brought a motion to discharge a construction lien filed by XPL Construction Solutions Inc. (XPL) and to dismiss the action against it, with Verg Construction Corp. and Anthony Vergalito supporting the motion.

North Bay later abandoned the dismissal request.

The court found significant credibility issues and competing narratives regarding the scope of work and invoicing practices between XPL and Verg.

The judge dismissed North Bay's motion to discharge the lien, concluding that there were triable issues and that XPL's claim was not frivolous, vexatious, or an abuse of process.

However, the court exercised its discretion to reduce the lien amount from $872,617.26 to $699,535.02 due to certain improperly included expenses and exaggerated time claims, without prejudice to XPL pursuing the full amount at trial.

The plaintiff builder sued the defendant homeowners for the unpaid hold-back on a custom home construction contract.

The homeowners counterclaimed, arguing the contract was a fixed-price agreement and that the builder negligently underestimated the 'cash allowance' items, resulting in significant cost overruns.

The court held that the cash allowances were estimates and the homeowners were responsible for the overages, noting they had signed change orders approving the extra costs.

The court dismissed the negligent misrepresentation claim for lack of evidence on the standard of care and found the homeowners' claims barred by promissory estoppel.

The builder was awarded the hold-back amount, subject to a set-off for the homeowners' costs in staining the house, which the court found was the builder's responsibility under the contract.

This is a costs endorsement following a nine-day trial where the plaintiff was awarded substantial damages ($54,365.25) and the defendants a small set-off ($4,500.00).

The plaintiff sought costs on a partial and substantial indemnity basis, arguing the defendants' conduct prolonged the trial and that a Rule 49 offer was more favourable than the judgment.

The defendants argued for proportionality in simplified procedure cases and that the costs claimed were excessive.

The court, applying principles from the Courts of Justice Act and Rule 57.01, found the plaintiff far more successful and that the defendants' actions contributed to the trial's length and complexity.

Despite the simplified procedure, the court emphasized that proportionality should not undercompensate a litigant for legitimately incurred costs, especially when the opposing party's conduct prolonged the proceedings or advanced unmeritorious defenses.

The court fixed costs at $45,000.00, all-inclusive, in favour of the plaintiff.