Jordan R.D. Lester

Following the dismissal of the applicants' application regarding the maintenance of a private drive, the successful respondent sought costs of $14,161.93.

The respondent relied on an offer to settle that would have provided the applicants with more than they achieved at the hearing.

The applicants argued the offer was not sufficiently certain to trigger Rule 49.

The court found the offer was valid and should be considered.

Applying the principle of reasonableness, the court fixed costs payable by the applicants to the respondent at $12,500 inclusive of disbursements and HST.

The applicants, property owners on a lakefront, sought a declaration that a private road leading to their properties had become a municipal roadway through the doctrine of dedication and acceptance.

The municipality had performed casual winter maintenance on the road pursuant to historical agreements that explicitly stated the road remained private.

The court dismissed the application, finding that the road was on Crown land, was not dedicated to public use, and that the municipality's maintenance work did not constitute a clear and unequivocal intention to assume responsibility for the road.

The plaintiff was successful on a motion for leave to conduct a second examination for discovery of the corporate defendant and sought substantial indemnity costs due to alleged unreasonable delay by the defendant.

The court rejected the request for substantial indemnity costs, finding the defendant's conduct did not reach the level of aggressive or contumelious behaviour required.

Costs were fixed on a partial indemnity basis at $1,000 for fees plus disbursements, reflecting a fair and reasonable amount for an uncomplicated procedural motion.

In a wrongful dismissal and Human Rights Code action, the plaintiff sought leave under Rule 31.03(2)(b) of the Rules of Civil Procedure to examine a second corporate representative of the defendant.

The initially examined representative had not reviewed a large disability insurer file produced in the litigation and lacked knowledge of communications with the insurer.

The court held that requiring numerous undertakings from an unprepared witness would cause undue expense and inefficiency.

Because another corporate officer had direct knowledge of the relevant communications, leave to conduct a limited second discovery was appropriate.

The examination was restricted to questions arising from the insurer’s long-term disability file and capped at 1.5 hours.