Kate Kehoe

On a motion arising within a wrongful conviction action, the moving parties sought leave to file a responding record after cross-examining the defendant on his summary judgment affidavit.

The court applied the flexible Rule 39.02(2) test and held the proposed evidence was relevant to credibility and to the nature of the defendant's investigative role, responded to issues raised on cross-examination, and was not shown to cause non-compensable prejudice.

The court declined to finally determine admissibility at this stage, holding that issue should generally be left to the summary judgment judge.

Leave was granted with terms requiring advance particulars of the alleged contradictions and permitting a responding affidavit.

The plaintiffs successfully resisted a summary judgment motion brought by the defendants in a test case.

The plaintiffs sought enhanced partial indemnity costs of $300,000, while the defendants argued for no costs due to divided success or deferral to the trial judge.

The court rejected the defendants' arguments, finding the plaintiffs were wholly successful in resisting the motion despite failing on a 'boomerang' summary judgment request.

The court awarded the plaintiffs partial indemnity costs of $235,768.86, finding the time spent and rates charged were reasonable given the complexity, importance, and high stakes of the test case.