Erik Penz

The applicant and one respondent were successful in an application to remove a matter from the Mining Lands Commissioner to the Superior Court of Justice.

They sought costs totaling over $120,000 against the unsuccessful self-represented respondent.

The court declined to award costs, finding the amounts claimed far exceeded reasonable expectations, the law was unclear, and a substantial award would be financially crushing to the unsuccessful party.

Each party was ordered to bear its own costs.

The applicant mining company brought a motion to strike portions of a respondent’s affidavit and factum on the basis that they disclosed communications made during settlement negotiations.

The court considered the principles governing settlement privilege as articulated by the Supreme Court of Canada and the conditions required for the privilege to arise.

It found that a litigious dispute existed or was contemplated at the time of the communications, the communications were made with an implied intention of confidentiality, and their purpose was to attempt settlement of the dispute.

As no competing public interest justified disclosure, the communications were protected by settlement privilege.

The court ordered that the impugned passages and documents be struck or expunged from the responding materials.

Following the defendant’s successful summary judgment motion in a commercial dispute, the court determined the appropriate costs award.

The successful party sought more than $164,000 in costs relying on a prior offer to settle, or alternatively $141,852.34 on a partial indemnity basis.

The court considered Rule 57.02 factors including the amount claimed, complexity of the proceedings, the plaintiff’s conduct in prolonging the litigation, and the requirement that costs be fair and reasonable.

Although the plaintiff’s conduct contributed to delay and the defendant’s offer to settle was relevant, the court found the hours claimed excessive and reduced the award.

Costs were fixed globally at $100,000 inclusive of HST and disbursements.

The defendant brought a motion for summary judgment dismissing the plaintiff’s claim for damages arising from the termination of a propane supply relationship and seeking judgment on a counterclaim for unpaid invoices.

The dispute centered on whether negotiations following the expiry of earlier agreements resulted in a binding contract and whether promissory estoppel or bad faith negotiations could support the plaintiff’s claim.

The court held that the plaintiff’s December 6, 2001 letter constituted a counter-offer that rejected the defendant’s earlier proposal, eliminating any ability to later accept it.

The court further found no evidence establishing promissory estoppel or any pleaded claim based on a duty of good faith in negotiations.

Summary judgment was appropriate in this document-driven case, the plaintiff’s claim was dismissed, and judgment was granted to the defendant on its counterclaim for unpaid gas supplied.

In CCAA proceedings involving a mining company, competing motions were brought concerning the restructuring process.

The debtor sought directions regarding the procedure for resolving noteholder claims and the alleged misuse of confidential information by certain creditors, while the noteholders sought an order convening a meeting of creditors to vote on their proposed plan of arrangement.

The court held that calling a creditors’ meeting was premature because the proposed plan conflicted with the debtor-in-possession financing facility, had been introduced without meaningful consultation, and unresolved claims and litigation issues could affect voting rights and recoveries.

The court dismissed the noteholders’ motion without prejudice and declined to order disclosure sought by the debtor.

The stay of proceedings was extended to facilitate continued negotiations and mediation.