The plaintiffs appealed a decision upholding the defendants' claim of litigation privilege over an expert engineer's file.
Before the appeal was heard, the defendants produced the expert's report and underlying file, rendering the appeal moot.
The Divisional Court awarded the plaintiffs $15,000 in costs for the appeal, the leave motion, and the appeal below, finding that the defendants' tactical delay in obtaining the report and claiming privilege unnecessarily prolonged the proceedings and increased costs, particularly given the defendants' spoliation defence.
