Natalie K. Mullins

Following a discovery motion in which the plaintiffs successfully obtained production of documents previously refused by the municipal defendant, the court determined the appropriate costs award.

The plaintiffs sought more than $15,000 on a scale slightly above partial indemnity, while the defendant argued that no costs should be awarded or that costs should be limited to a much smaller amount.

Applying s. 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure, the court held that the successful party was generally entitled to costs but that the amounts claimed were excessive and that elevated costs were not justified absent reprehensible conduct.

Considering proportionality and the plaintiffs’ lack of complete success, the court fixed partial indemnity costs at $7,500 inclusive of HST and disbursements.

The plaintiffs brought a motion to compel the municipal defendant to answer undertakings and produce documents relating to expert evidence arising from environmental contamination litigation.

The court considered Rules 31.06 and 53.03 of the Rules of Civil Procedure governing disclosure of expert findings, opinions, and materials reviewed by experts.

Because the defendant intended to call its environmental expert at trial, the court held that the expert’s memoranda, email communications, and materials reviewed by the expert were producible to permit the opposing party to test the opinion evidence.

Although the defendant had undertaken not to call a valuation expert, a partial disclosure of a letter from that expert was ordered because it had been reviewed and used as instructions for the testifying expert.

The motion was granted with production orders and compliance deadlines.