Nancy Kathleen Brooks

This costs endorsement followed a twelve-year litigation where the plaintiff's case, alleging an unfair bidding process, was dismissed in its entirety.

The defendant sought substantial indemnity costs of over $2.8 million, citing the plaintiff's unfounded allegations of dishonesty and collusion and persistence despite prior judicial warnings.

The plaintiff argued for partial indemnity costs, disputing the quantum and the basis for substantial indemnity.

The court awarded the defendant substantial indemnity costs from the date of its offer to settle in May 2014, finding the plaintiff's continued litigation of weak claims warranted such an award.

The final costs awarded to the defendant were $1,864,000, inclusive of disbursements and HST, after reductions for travel and excessive e-discovery costs.

The plaintiff, an incumbent service provider, sued the defendant community care access centre for damages arising from a 2003 Request for Proposals (RFP) process.

The plaintiff alleged the procurement process was unfair, claiming the defendant was motivated by a desire to avoid severance costs, used undisclosed criteria, permitted a conflict of interest, unfairly customized the RFP, accepted a non-compliant bid, and conducted a flawed evaluation.

The Superior Court of Justice dismissed the action, finding that while there were minor procedural irregularities, the defendant did not breach its duty of fairness.

The court concluded the defendant had no financial motive to disfavour the plaintiff, the evaluation criteria were transparent, and the plaintiff was not prejudiced by the evaluation process.

The plaintiff brought a motion challenging the defendant’s claims of privilege over numerous emails listed in Schedule B of its affidavit of documents in a civil action alleging improper tendering practices in a public procurement process.

The court considered the scope and duration of solicitor‑client privilege and litigation privilege, particularly whether litigation privilege arising from earlier labour board proceedings and arbitration continued to apply in the current civil action.

Applying the Supreme Court of Canada’s framework in Blank v. Canada, the court held that litigation privilege persists only where the subsequent litigation constitutes essentially the same legal combat and disclosure would intrude upon the advocate’s protected zone of privacy.

The court also examined issues arising from electronic discovery and discovery planning under the Rules of Civil Procedure.

After inspecting the contested documents, the court ordered production of some emails while upholding privilege over others depending on their purpose and whether disclosure would reveal legal advice or litigation strategy.

The appellants sought an extension of time and a re-hearing on the issue of costs following an appeal.

The Supreme Court of Canada granted the applications and awarded costs of the appeal, the application to extend time, and the re-hearing to the respondent.