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 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.