Gerald Genge

The plaintiff developer brought a motion under Rule 32 of the Rules of Civil Procedure to inspect and conduct non-destructive testing at several townhome units where heating deficiencies were alleged.

Tarion Warranty Corporation, a non-party respondent administering statutory warranty claims, opposed the motion, arguing it would delay scheduled remedial work.

The court granted the motion, finding the inspection necessary for the proper determination of issues in the proceeding and noting that the plaintiff's proposed schedule would not interfere with Tarion's planned repairs.

Following a jury trial in a solicitor's negligence action where the plaintiffs were awarded $190,000, the court determined the issue of costs.

Although the plaintiffs beat their offer to settle, the court departed from the prima facie rule of substantial indemnity costs due to the improper conduct of plaintiffs' counsel and the perverse nature of the jury's damages findings.

Applying the principle of proportionality under Rule 1.1, the court significantly reduced the plaintiffs' costs claim from $237,535.25 to $129,316 on a partial indemnity scale.