John R. Martin

The appellants, having been successful in their appeal which struck the respondent's counterclaim and third-party claim, sought their costs on a partial indemnity basis.

The court fixed the costs for both appellants but declined to include any fees or disbursements related to a voluntary mediation.

The court held that voluntary mediation is not a step authorized by the Rules of Civil Procedure, and as a matter of policy, the costs of voluntary mediation should be borne equally by the parties to encourage settlement efforts without fear of increased costs if unsuccessful.

The appellants appealed an order dismissing their motions under Rules 20 and 21 to strike the respondent's claims for constructive dismissal and related torts as statute-barred.

The motion judge had found that the claims could have been discovered before the respondent resigned, potentially triggering the six-year limitation period under the transitional provisions of the Limitations Act, 2002.

The Divisional Court allowed the appeal, holding that a cause of action for constructive dismissal arises only when the employee resigns.

As the resignation occurred in May 2004, the two-year limitation period applied and the claims were statute-barred.

The court also held that the motion judge erred in linking the Rule 20 and Rule 21 motions, and found no triable issue regarding promissory estoppel or acknowledgment of liability.

The representative plaintiff in a proposed class proceeding sought to introduce a settlement agreement and reasons for decision from a prior Ontario Securities Commission (OSC) prosecution against the defendants.

The defendants appealed a motion judge's refusal to strike these documents from the plaintiff's affidavit, arguing they were protected by settlement privilege and inadmissible.

The Divisional Court dismissed the appeal regarding the settlement agreement and reasons, finding that the defendants waived privilege by entering a public regulatory settlement, which was tantamount to a guilty plea.

However, the court allowed the appeal in part to strike the statement of allegations, as mere allegations have no evidentiary value.