Hailey Brianna Bruckner

This costs endorsement addresses the allocation of costs following a stay of proceedings due to the plaintiff’s failure to promptly disclose a settlement with certain defendants.

The court reviews the history of the Anton Piller Order, the Comeback Order, and the subsequent motions, ultimately awarding partial indemnity costs to the successful defendants, Marc Castillo and Castillo HR Consulting Inc., in the amount of $45,000.

The court declines to revisit costs already determined by a previous order and limits recovery to the portion of the motion related to the stay, excluding costs for the Anton Piller Order and preparation of a discovery plan.

This decision addresses a motion by the plaintiffs for production and directions regarding claims of privilege over thousands of documents and answers to questions refused on discovery in a complex, multi-party commercial litigation.

The court reviews the legal principles governing solicitor-client privilege, litigation privilege, and common interest privilege, and applies them to various categories of documents and questions.

The court provides detailed directions on the production of documents, the sufficiency of evidence to support privilege claims, and the process for resolving ongoing disputes about privilege.

The court considered a motion by Marc Castillo and Castillo HR Consulting Inc. to stay the action for abuse of process due to Peninsula Employment Services Ltd.'s failure to immediately disclose settlement agreements with three former co-defendants.

The court found that the delayed disclosure of these agreements, which required the settling defendants to cooperate with the plaintiff, fundamentally altered the adversarial landscape and violated the strict requirement for immediate disclosure.

As a result, the action was permanently stayed.

The court also addressed, in obiter, the obligations of the Independent Supervising Solicitor regarding the production and accessibility of electronic documents seized under an Anton Piller Order.

The plaintiffs brought a motion seeking a declaration that a document ("the Proffer") provided by the defendant to the Attorney General for Canada (AGC) under s. 38 of the Canada Evidence Act was not subject to privilege or that any such privilege had been waived, and an order for its production.

The defendant asserted litigation privilege.

The court found that the Proffer was created for the dominant purpose of preparing for litigation, making it presumptively protected by litigation privilege.

The court further held that the disclosure of the Proffer to the AGC, being a statutory compulsion, did not constitute a voluntary waiver of privilege, nor did fairness and consistency require waiver.

The plaintiffs' motion was dismissed.

This is a costs endorsement following the dismissal of the plaintiffs' contempt motion against two defendants, Saad Aljabri and Mohammed Aljabri.

The plaintiffs had sought a contempt order for alleged breaches of a Mareva Order, with potential sanctions including striking defences and default judgments for billions of dollars.

The defendants, as successful parties, sought substantial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs' conduct was not reprehensible, scandalous, or outrageous, nor did they pursue the motion for an improper tactical advantage.

The court awarded partial indemnity costs to the defendants for the contempt motion.

Additionally, the court fixed costs for several preliminary motions, with mixed success for the parties, rejecting a "distributive costs" approach for the contempt motion itself but fixing costs for each preliminary motion separately.

The appellants appealed a motion judge's decision dismissing their summary judgment motion and granting summary judgment and a permanent stay to the respondents.

The core issue was the appellants' failure to immediately disclose settlement agreements with other defendants, which altered the litigation's adversarial landscape.

The Court of Appeal affirmed the motion judge's finding that these contingent settlement agreements, which included provisions for private evidence gathering and financial incentives for cooperation, changed the adversarial relationship into a cooperative one, triggering the immediate disclosure rule from Handley Estate.

The court reiterated that immediate disclosure is mandatory, regardless of contingencies or confidentiality clauses, and that a stay of proceedings is the appropriate remedy for such an abuse of process.

The appeal was dismissed.