M. Nguyen

Following a summary judgment motion with divided success, both parties sought costs.

The defendants sought $21,377.86, reflecting a 50% reduction for divided success, while the plaintiff sought $9,489.50, reflecting a 20% reduction.

The court found the plaintiff was the more successful party, having successfully resisted the dismissal of its entire action and established bad faith by the defendants on one issue.

The court awarded the plaintiff $10,000 in costs, all inclusive.

Following a motion to strike affidavits where success was divided, the defendants sought costs on a partial indemnity basis.

The court found that the defendants were partially successful in having certain conclusions struck from the plaintiff's affidavits, but unsuccessful in striking the affidavits in their entirety.

Applying the principle of proportionality and reflecting the divided success, the court awarded the defendants 50% of their reasonable partial indemnity costs, totaling $6,636.32.

The defendants brought a motion to strike three affidavits filed by the plaintiff in response to the defendants' summary judgment motion based on a limitation period defence.

The defendants argued the affidavits contained inadmissible expert evidence and unsupported hearsay.

The court held that it was appropriate to review the expert evidence issue in advance of the main motion.

The court found that the attached engineering reports were not expert reports for the purpose of the discoverability issue, but the deponents' opinions on whether unit owners could have discovered the deficiencies without engineering assistance were litigation expert opinions.

As these opinions did not comply with Rule 53.03(2.1), the specific paragraphs containing them were struck.

The court deferred the issue of unsupported hearsay to the judge hearing the main summary judgment motion.