Whitty v. Wells, 2017 ONSC 3682

CITATION: Whitty v. Wells, 2017 ONSC 3682

DIVISIONAL COURT FILE NO.: 6/17

DATE: 20170628

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC., and 876947 ONTARIO LIMITED, Plaintiffs/Moving Parties

AND:

EDWARD N. WELLS, EDWARD G. WELLS, BRADLEY MAY, RENZO BENOCCI, MARK VANDERLAAN, MANON BOMBARDIER, GORDON OWEN, and ATTORNEY GENERAL OF CANADA, Defendants/Respondents

AND RE: 1049585 ONTARIO INC. o/a RPR ENVIRONMENTAL SERVICES, Plaintiffs/Moving Parties

AND:

ATTORNEY GENERAL OF CANADA, EDWARD G. WELLS, and EDWARD N. WELLS, Defendants/Respondents

AND RE: 1049585 ONTARIO INC., o/a RPR ENVIRONMENTAL SERVICES, Plaintiffs/Parties

AND:

ATTORNEY GENERAL OF CANADA and EDWARD N. WELLS, Defendants/Respondents

AND RE: PATRICK WHITTY, RPR ENVIRONMENTAL INC., 1049585 ONTARIO INC. o/a RPR ENVIRONMENTAL SERVICES, and 876947 ONTARIO LIMITED, Plaintiffs/Parties

AND:

EDWARD NICHOLAS WELLS, EDWARD GLENN WELLS, JEFFREY GREEN, BRADLEY MAY, MARK VANDERLAAN, SANDRA ANTONIANI, and ATTORNEY GENERAL OF CANADA, Defendants/Respondents

BEFORE: SPIES J.

COUNSEL: Vilko Zbogar, for the Plaintiffs/Moving Parties

Jacqueline Dais-Visca and Abigail Browne, for the Defendants/Respondents (excluding Sandra Antoniani)

John Evans, for the Defendant/Respondent, Sandra Antoniani

HEARD at Toronto: In writing

ENDORSEMENT

Introduction

[1] This is an application by the plaintiffs for leave to appeal from an interlocutory order made by Myers J. on December 9, 2016 with reasons released on December 13, 2016 and reported at Whitty v. Wells, 2016 ONSC 7716, which apply to four actions brought by the plaintiffs against the defendants. The motion judge, who has been the case management judge assigned to these four actions since June 2015, heard four motions over two days. He decided those motions as follows:

1. He dismissed the plaintiffs' motion for additional production of documents from the Attorney General of Canada (“Crown”);

2. He refused to set aside his prior order of April 4, 2016 with respect to costs and security for costs made against the plaintiffs after rejecting the plaintiffs’ submission that the Crown knowingly committed fraud in swearing to the completeness of its disclosure;

3. He refused to set aside the costs order of Matlow J. dated November 28, 2014 as he was not satisfied that the Crown made any misrepresentations to Matlow J.;

4. After conducting an in camera review of the defendants' Schedule "B" documents, he ordered production of 31 documents that the defendants had claimed were solicitor-client privileged communications between the prosecutor, Sandra Antoniani (Antoniani), and Environment Canada;

5. He granted the Crown's motion to "claw-back" six solicitor-client privileged documents inadvertently released to the plaintiffs in response to the plaintiffs’ Access to Information Act (“ATIA”) request and dismissed the plaintiffs’ cross-motion challenging his jurisdiction to so order; and

6. He dismissed Antoniani’s motion for production by the Crown of solicitor-client privileged material disclosed in Schedule “B” of the Crown’s list of documents as being moot.

[2] The plaintiffs also seek leave to appeal the costs decision of Myers J. dated January 20, 2017 and reported at Whitty v. Wells, 2017 ONSC 517. He ordered that the plaintiffs pay a total of $70,000 in costs to the Crown and $25,635.80 in costs to Antoniani, both on a substantial indemnity basis.

Is this Motion for Leave to Appeal out of Time?

[3] The defendants argue that that the plaintiffs have filed their motion record and factum three months late. Rule 61.03(1)(b) provides that on an appeal to the Divisional Court that requires the leave of the court, the notice of motion for leave shall be served within 15 days after the making of the order or decision from which leave to appeal is sought. Rule 61.03(1)(c) provides that the notice of motion be filed with the court within five days after service.

[4] In my view the relevant start date in this case is when the reasons of the motion judge were released; December 13, 2016. The Notice of Motion for leave to appeal was served on December 28, 2016, just after the Christmas holidays, and filed on January 5, 2017. It was a little late but given the holidays I take no issue with this.

[5] Although Rule 61.03(2) requires that the motion record and factum be filed with proof of service within 30 days after the filing of the notice of motion for leave to appeal, the plaintiffs’ motion record was not served until March 14, 2017 and the factum was only served on April 26, 2017. The plaintiffs explain the delay in the filing of the motion record to be because the orders of the motion judge took time to prepare and were not issued and entered until March 7, 2017. The Crown asserts that the plaintiffs were slow in arranging for the preparation, approval and issuance of the orders. I make no finding as to who is correct on this point.

[6] However, there is no reason why the plaintiffs’ factum could not have been served and filed on March 14th with the motion record. The plaintiffs do not explain this further delay and argue that the defendants did not formally move to dismiss the motion for leave to appeal on the ground of delay as if that is a complete answer. It is not. The defendants objected to the delay in correspondence with counsel for the plaintiffs. In my view the onus was on the plaintiff to seek an extension of time but given my conclusion on the merits of the plaintiffs’ motion it is preferable to determine the motion on that basis.

The Test for Leave to Appeal under Rule 62.02(4)

[7] Pursuant to Rule 62.02(4) of the Rules of Civil Procedure, leave to appeal should not be granted unless the moving party can satisfy the court of either of the following tests for leave:

(a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. [Emphasis added]

[8] It is unfortunately not clear from the plaintiffs’ amended notice of motion for leave to appeal or their factum as to which branch of the test they rely upon. In the opening paragraph of their factum the plaintiffs state:

There is good reason to believe that the motion judge made multiple errors, including failing to apply the applicable legal principles and making findings that were contrary to the evidence. Some aspects of his orders conflict with existing case law.

The proposed appeal would address important issues relating to the scope of documentary discovery, the extent to which a party’s disclosure obligations may be abrogated by proportionality principles, and whether solicitor-client privilege should be extended beyond those circumstances where legal advice is being sought or given.

[9] Although the plaintiffs refer to the first branch of the test, they make no reference to any conflicting decisions by other judges in courts in Ontario or elsewhere. It would seem, consistent with this opening language in their factum, that they seek leave to appeal pursuant to Rule 62.02(4)(b). In any event, as explained by Leach J. in Eftimovski v. Faris, 2014 ONSC 2476, the test for leave under Rule 62.02(4)(a) is not applicable where the applicant is arguing that the decision under appeal is itself in conflict with binding jurisprudence. Such an argument is more appropriately described as there being “good reason to doubt the correctness” of the decision. I will therefore consider this motion pursuant to Rule 62.02(4)(b).

Analysis

Is there good reason to doubt the correctness of the decision of the motion judge?

[10] As stated by Ducharme J. in Sutherland v. VIA Rail Canada Inc., 2012 ONSC 6014 at para. 4:

Under this branch of the test it is not necessary for the moving party to show that the decision of the motion judge is wrong or probably wrong, only that there is good reason to doubt the correctness of the decision. Nonetheless, the test for leave of an interlocutory order is an onerous one. The question is whether the decision is open to serious debate and, if so, that the decision warrants resolution by a higher level of judicial authority.

[11] The plaintiffs have raised numerous issues with respect to the correctness of the decision of the motion judge. In my view, they are simply seeking to reargue the merits of the motions because they do not like the conclusions reached by the motion judge. As the case management judge, the motion judge was familiar with the complicated history of these four actions and as a result his decision is deserving of a high level of deference. He dealt with all of the issues raised by the plaintiffs in a thoughtful way and I see no reason to doubt the correctness of his decision.

[12] I will not detail all of the issues raised by the plaintiffs because having considered their main arguments I am not satisfied that this proposed appeal would be of general importance such that leave ought to be granted.

[13] The plaintiffs allege that the motion judge erred in law and failed to determine the relevance of further disclosure sought by reference to the pleadings and instead relied on an irrelevant factor namely the fact that the Crown had already produced a lot of seemingly irrelevant documents. They also take issue with his application of the principle of proportionality and in imposing an evidentiary burden on the plaintiffs to point to actual relevant documents that had not been produced by the defendants in order to establish that the defendants did not produce relevant documents.

[14] I disagree. In my view the motion judge reviewed the evidence, applied proper legal principles and exercised his discretion to refuse to order any further disclosure or production, mindful that the plaintiffs would be free to ask questions at the oral examinations for discovery about why certain documents were missing or not disclosed, assuming they existed at all.

[15] The plaintiffs complain about the motion judge comments at para. 7 where he considered what he termed an “Important Overriding Fact” that:

…very few of the many documents I reviewed were at all relevant to the claims in issue. … there has been much overkill and disproportionate document review and production in this litigation. …very few documents relate to any issues that could be considered relevant to claims of wrongdoing against Ms. Antoniani or the government officials.

[16] I see no reason why the motion judge could not consider this as a factor when he came to the issue of proportionality.

[17] The reasons of the motion judge make it clear that although he accepted as a fact that the Crown had only produced 45%-64% of the documents it had produced under the 60 ATIA requests by the plaintiffs, that was not relevant as the plaintiffs were not able to demonstrate that there were relevant unproduced documents or that further efforts to disclose what they sought would be at all fruitful. It was in that context he noted that:

The issues guiding production of documents in this litigation are relevancy and proportionality assessed against the issues in the pleadings. … I do not accept that spending any further time and effort on further documents searches by the Crown is likely to yield any relevant documents especially when most of what I have seen so far has been of limited or no relevancy at all. (At para. 10)

[18] The motion judge was in the best position to make this determination and I see no error in principle.

[19] With respect to the additional 51 categories of “missing documents” requested by the plaintiffs, the motion judge found that the fact that the Crown had provided a further 500 documents in response to this request in advance of the motion, without admitting that they were relevant, was of no moment. I agree. On the evidence before him it was certainly open to the motion judge to find that this further production was not an admission of relevance as submitted by the plaintiffs.

[20] The motion judge found that for most of the plaintiffs’ 51 categories, the Crown’s position was that it had produced what it had. He reasoned at para. 12 that “unless the plaintiffs have proof that the Crown has more and that they are relevant, that answer is, of necessity, sufficient.” The plaintiffs argue that they had evidence to the contrary but they ignore that part of this sentence that also requires the plaintiffs to show that the documents are relevant. As the motion judge held, the plaintiffs can cross-examine on the Affidavit of Documents in order to attempt to attack this assertion during oral discoveries and if there is some evidence suggesting that the statements were false and that relevant documents are missing then specific undertakings can be sought, failing which further relief can be sought from the motion judge. This is not an impossible evidentiary burden as submitted by the plaintiffs.

[21] The reasons of the motion judge go on to deal with one aspect of the relevance of the plaintiffs’ request and concludes that asking for production of all documentation provided by the Canada Border Services Agency (CBSA) to the Crown for all other border crossings by all other businesses in their field “offends virtually every subsection of Rule 29.2.03”. (at para. 14) The motion judge clearly found no purpose in producing those documents and suggested instead that the plaintiffs ask on discovery whether there was a failure to forward documents provided to border guards by truckers or if the former received documentation from the CBSA for the plaintiffs or for others at about the time of the charges against the plaintiffs. That was a sensible solution and would give the plaintiffs the information sought but only if relevant documentation existed.

[22] In my view the motion judge was also correct in finding that the proportionality provisions of Rule 29.2.03 apply to the scope of disclosure under Rule 30.02(1). Rule 29.2.02 specifically refers to proportionality applying to the production of documents and to Rule 30 which deals with the discovery of documents. The motion judge did not change the law.

[23] The plaintiffs argue that the motion judge erred at para. 15 of his reasons in finding that the scope of production under Rule 29.2.03 does not differ from the scope of disclosure under Rule 30.02(1) because he stated that “all documents disclosed must also be produced”. This argument skips the motion judge’s reference to Rule 30.04(1) and (4) which on their face provide only for the disclosure and production of those documents that are not privileged.

[24] For these reasons not only do I find there is no good reason to doubt the correctness of the decision of the motion judge with respect to the issues of further production by the Crown, I concur with his reasons and decision.

[25] The plaintiffs also argue that the reasons of the motion judge were clearly wrong with respect to his application of the issues of solicitor-client privilege. Although the plaintiffs assert that the motion judge failed to apply the law, in fact he cited the correct law including the recent decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53. That decision summarizes the “basic outlines of the law of solicitor-client privilege”. The motion judge also relied on Solosky v. The Queen, 1979 9 (SCC), [1980] 1 S.C.R. 821 and the decision of Nordheimer J. in Mandeville v. Manufacturers Life Insurance Co., 2004 CarswellOnt 9988 (Ont. S.C.) where at para. 4 he refers to R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565.

[26] The plaintiffs assert that the reasons of the trial judge are incorrect in characterizing the relationship between the Crown prosecutor Antoniani and Environment Canada as a solicitor-client relationship, arguing that Environment Canada was not her client since she was duty bound to exercise prosecutorial independence. However, as Antoniani asserts in her factum, at para. 30, her relationship with the Environment Canada investigators is of the very category encompassed by Justice Binnie in Campbell at para. 49 where he finds that the RCMP are able to obtain professional legal advice “in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings.” On that basis the motion judge rightly rejected the plaintiffs’ argument that communication between investigators and the prosecutor on areas where one or the other has unilateral discretion are not privileged because they do not involve communication of legal advice. He also considered the fact that to the extent Antoniani shared information with the Public Prosecution Service of Canada (PPSC), which had retained her to prosecute the plaintiffs, that those communications were privileged. Whether she was getting help or her opinions were being subjected to quality control, the communications involved conveying information in confidential circumstances for the purpose of the client, namely the PPSC, obtaining and being given proper legal advice.

[27] In my view the plaintiffs have misinterpreted the decision of the motion judge in that they argue at para. 92 of their factum that his conclusion goes beyond the parameters set out in Campbell and disregards the criteria set out in Solosky. The motion judge did not find that “essentially all communications between a prosecutor and the charging officer will be privileged”. In para. 35 of his reasons the motion judge rejected the plaintiffs’ argument for a “narrowed band” for prosecutor-investigator privilege claims and in doing so relied upon correct legal principles. As the motion judge correctly noted “people with discretion are entitled to seek legal advice on whether or how the circumstances support the exercise of their discretion.”

[28] In determining which documents ought to be produced the motion judge also relied on the leading Supreme Court of Canada case, Blood Tribe; a reference to Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 which was specifically approved of in the majority decision of Côté J. in Alberta v. University of Calgary, supra, when he determined how broad the relationship of privilege between a Crown lawyer and an instructing government investigator should be. In short he concluded that Antoniani’s communications sought by the plaintiffs on the motion were plainly within the scope of her retainer, communicated legal advice implicitly or explicitly, and were neither criminal acts nor in furtherance of a criminal purpose. He was not satisfied the additional categories of documents demanded by the plaintiffs were relevant and he rejected the myriad of challenges to the privilege asserted by Environment Canada as being well reasoned and reasonable. I see no error in his reasoning or decision.

[29] In my view the motion judge also correctly applied the prevailing law in determining that communications among members of the Regulatory Department that did not include a lawyer did not result in the loss of privilege where there was not “overbroad dissemination of privileged information”.

[30] Having cited the correct law the motion judge heard submissions from the parties regarding the privilege claims and reviewed approximately 300 Schedule “B” documents of Antoniani and the Crown defendants in camera. After that review he ordered disclosure of only 31 documents.

[31] Finally, the plaintiffs complain about the decision of the motion judge finding that six documents disclosed as part of the ATIA request could be “clawed-back” as they are “manifestly not privileged”. The Crown delivered explicit evidence as to who had legal authority for waiving privilege in the relevant Ministry, the efforts made to protect privilege and clear statements that the privileged documents were released by mistake and without the authority of the relevant officials. As the motion judge noted, the plaintiffs did not cross-examine on any of this evidence and it stood unchallenged. He proceeded then to apply the law as set out in R. v. Ward, 2016 ONCA 568, a decision of the Court of Appeal, and Nova Growth Corp. v. Kepinski, 2001 CarswellOnt 581C (S.C.J.), a decision of Farley J., where at para. 13 and then at para. 29, he adopted the views of Nordheimer J. in Aviaco International Leasing Inc. v. Boeing Canada Inc., 2000 22777 (ON SC), [2000] O.J. No. 2420. I see no error in principle.

[32] The motion judge found that both sides shared some blame because the Crown released the documents and the plaintiffs held them and acted on them rather than confirming there had been a waiver of privilege. The plaintiffs complain that the motion judge unfairly blamed them but he clearly found that both sides shared the blame. In any event, nothing turns on this issue. The motion judge came to the correct conclusion that the documents were protected by solicitor-client privilege, that privilege had not been waived and that the plaintiffs were to return these documents and were prohibited from using any of these documents. He did not grant the defence motion to have Mr. Zbogar removed from the record as counsel to the plaintiffs.

[33] In their reply factum the plaintiffs assert that a new ground of appeal is raised by para. 48 of the Crown’s factum, namely that the motion judge reviewed the six “claw-back documents” without the presence of the plaintiffs and their counsel but in the presence of the defendants and their counsel. That is not what this paragraph in the Crown’s factum states. Furthermore, it is clear from the reasons of the motion judge that he reviewed the Crown’s Schedule “B” documents on his own without the presence of the parties or their counsel. In fact, at para. 6 of his reasons, he states that he did so at the request of all counsel. This was the best way for the motion judge to determine the issue of solicitor-client privilege. I believe the point being made in paragraph 48 from the Crown’s factum is that these six documents, in the context of all the Schedule “B” documents, were found to be privileged by the motion judge. Clearly the parties argued about these six documents as can be seen from para. 27 onwards of the motion judge’s reasons where reference to the submissions made are dealt with.

[34] For these reasons I find that the plaintiffs have not satisfied me that there is any reason to doubt the correctness of the decisions of the motion judge.

General Importance of the Appeal

[35] The words of the second part of Rule 62.02(4)(b) have been interpreted to make it clear that “matters of such importance” such that leave to appeal should be granted are matters of general importance, not matters of particular importance relevant only to the litigants, see ComTrade Petroleum Inc. v. 490300 Ontario Limited (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div. Ct.). I do not accept the plaintiffs’ submission that it is enough if the decision has a substantial impact on a party. That is not the test.

[36] The only reference in the plaintiffs’ factum to the general importance of the issues in this case is that:

The motion judge’s ruling significantly expands the boundaries of what could be considered to be privileged in the context of a prosecution. This has implications for disclosure in and conduct of civil actions, but also sets out principles that could potentially be relied on in the criminal context to deny disclosure to an accused. … and may interfere with disclosure rights. (At para. 106)

[37] In this case the motion judge made a discretionary decision based on a very specific analysis of the applicable law and the case before him. He did not articulate any broader principles of law and his decision has no precedential impact. It is of importance only to the parties to this litigation.

[38] For the reasons already stated, the motion judge did not expand the boundaries of solicitor-client privilege. Even if I were not of the view that the reasons of the motion judge show that he carefully considered all of the evidence and submissions made, applied the proper legal principles and came to the correct conclusion, I would not grant leave to appeal. The second part of the test is an important one as this court seeks to discourage the expense of appeals from interlocutory orders and the resulting delay in the proceedings.

Motion to Set Aside or Vary the Order made by the Motion Judge on April 4, 2016

[39] The plaintiffs do not seek leave to appeal the refusal of the motion judge to set aside the order of Matlow J.

[40] The plaintiffs do seek leave to appeal the refusal of the motion judge to set aside his order made on April 4, 2016 that the plaintiffs pay costs of $22,000 and post security for costs of $230,000 as a condition of being granted an extension of time for delivery of their affidavit of documents and damages report pursuant to Rule 59.06(2).

[41] The plaintiffs submit that underpinning this order was the finding by the motion judge that “the government produced its list as required” and that that was not the case. As the Crown points out however, that was not the operative part of the reasons given by the motion judge. At para. 32 of his decision the motion judge held that the plaintiffs had failed to comply with the schedule and that it would result in a significant hiatus for several months while the parties awaited their expert reports and that the motions for judgment could have long since been heard:

… to end the distress on a number of individuals who have been sued personally with no particulars of wrongdoing in their personal capacities. I am confronted with plaintiffs who do not feel compelled to obey what they perceive to be minor procedural orders, who five years into the case have resisted focusing on the ‘one big question’ of their damages, and who have not seen fit to respond to my expressions of concern that the litigation may be carried in bad faith.

[42] I see no basis to doubt the correctness of this conclusion nor is this matter of general importance. Leave to appeal this order is also denied.

Motion for Leave to Appeal the Costs Order Below

[43] The orders of the motion judge were interlocutory and as such to obtain leave to appeal the costs order, the plaintiffs must satisfy one of the branches of the test for leave set out in Rule 62.02(4).

[44] The plaintiffs misunderstand the reasons for the decision of the motion judge to award costs to the defendant Antoniani even though she sought substantially the same relief as the plaintiffs and her motion was dismissed. As the motion judge found, Antoniani, a Crown agent, brought her motion to ensure that if the Crown had waived privilege on some of the documents related to her defence, over which she claimed privilege, that the Crown could not then continue to assert privilege on other relevant documents in its possession related to her issues. Her motion was dismissed only because the plaintiffs’ motion seeking an order that all of the documents were not privileged was dismissed. I see no error in the exercise of the discretion of the motion judge. As he noted the need for Antoniani’s motion turned on the outcome. She sought further and better production of the Crown documents to support her defence unless the Crown documents were clawed back as privileged. The plaintiffs also challenged her claims for privilege in her affidavit of documents and to that extent she succeeded on that motion.

[45] As for the costs of the Crown, the motion judge found that although the Crown did not obtain the order removing Mr. Zbogar from the record, that added virtually nothing to the time expended. The plaintiffs, having lost all of their motions, were required to pay costs. The issue for the motion judge was the scale of costs. In that regard the motion judge found, at para. 8 of his decision, that the plaintiffs’ motion to set aside the costs and security for costs award plainly alleged the Crown had committed a fraud on the court, that the Crown misrepresented the facts “carelessly or recklessly” and that during oral argument Mr. Zbogar overtly alleged that the Crown and its counsel made knowingly false statements to the motion judge in evidence and in legal submissions. The motion judge specifically dealt with the argument the plaintiffs assert before me - that they did not make claims or insinuate fraud or deliberate misconduct and the motion judge rejected those submissions. Having found that the plaintiffs had asserted fraud he agreed with the Crown that this was “one of the very unusual cases where conduct of a party is sufficiently egregious and reprehensible so as to entitle the responding party to indemnity for substantially all of the costs that it was forced to incur to respond”. On that basis he awarded costs on a substantial indemnity basis in favour of the Crown. I see no error in the exercise of the motion judge’s discretion. In any event, the issue of costs does not involve a matter of such importance that leave to appeal should be granted.

Disposition

[46] For these reasons, the plaintiffs’ motion is dismissed with costs to the defendants.

Costs

[47] The parties filed Cost Outlines. There is no reason to depart from the usual rule that the successful parties should receive costs on a partial indemnity basis. The plaintiffs request costs on a partial indemnity basis of almost $21,000. The Crown defendants seek substantial indemnity costs in the amount of almost $34,000 on the basis that this motion was unmeritorious and due to the plaintiffs’ delay in serving their materials. In the alternative the Crown defendants seek costs on a partial indemnity scale in the amount of about $22,500 on a partial indemnity basis. The defendant Antoniani seeks costs on a substantial indemnity in the amount of about $13,600 and partial indemnity costs in the amount of just over $8,000.

[48] I have found the plaintiffs’ motion to be without any merit and accept the defendants’ submission that In those circumstances costs could be awarded on a substantial indemnity basis as a result; see Tribax Management Ltd. v. Laswind Investments Ltd., [2002] O.J. No. 2807. Furthermore, substantial indemnity costs may be awarded when one party brings proceedings totally devoid of merit and that unnecessarily run up the costs of the litigation; see Standard Life Assurance Co. v. Elliott, 2007 18579 (ON SC), 86 O.R. (3d) 221 at paras. 9-10.

[49] Having carefully considered the matter I have concluded that the plaintiffs’ conduct in bringing this motion was misguided and without merit but I am not prepared to sanction the plaintiffs with costs on a substantial indemnity basis. I expect, however, that if this type of conduct on the part of the plaintiffs continues that this may be something that the case management judge decides to do to get this action on the right track.

[50] Although I will not award the defendants costs on a solicitor-client basis, I do agree with the Crown’s submissions that the 16-page Amended Notice of Motion and the voluminous supporting materials including a 30-page factum, challenging virtually every finding and legal conclusion of the motion judge imposed a significant burden on the defendants to respond. They are certainly entitled to a generous award of costs on a partial indemnity basis.

[51] In my view a reasonable amount for costs, on a partial indemnity basis, is that the plaintiffs pay the Crown $22,500 for costs, all inclusive, and pay Antoniani costs in the all-inclusive amount of $7,500 within 30 days of the release of this endorsement.

SPIES J.

Date: June 28, 2017