Michael Stitz

The parties sought costs following three segments of the discovery process, including motions for undertakings and refusals.

The plaintiff claimed misappropriation by a former employee who started a competing business, while the defendant counterclaimed for wrongful dismissal.

The Master awarded partial indemnity costs to the plaintiff for its successful refusals motion, partial indemnity costs to the defendants for their refusals motion (deferring expert costs to the trial judge), and ordered costs in the cause for both parties regarding a third motion involving aborted discoveries.

The defendant, SPS Commerce Canada Ltd., brought a motion to strike paragraphs 33 to 40 of the plaintiff's Statement of Claim, arguing they contained without prejudice settlement discussions protected by settlement privilege.

The plaintiff, Tricia Clayton, opposed the motion, distinguishing between settlement discussions regarding a severance package and communications related to the employer's statutory duty to investigate harassment allegations and a Performance Improvement Plan (PIP).

The court found that the three conditions for settlement privilege were not met for the communications concerning the investigation and PIP, as these were factual and part of the employer's statutory obligations, not attempts to effect a settlement.

The motion to strike was dismissed.