Patrick Andrew Thompson

This costs endorsement addresses the appropriate scale and quantum of costs following the plaintiffs’ successful resistance to the Gamma defendants’ motion to quash a summons to witness.

The court declines to award substantial indemnity costs, finding no litigation conduct warranting sanction, and instead fixes partial indemnity costs at $12,000, inclusive of disbursements and HST, to be paid by the Gamma defendants to the plaintiffs within 30 days.

The Gamma defendants sought to quash a summons to witness served on Harry Wang in relation to a pending jurisdiction motion.

The court found that the plaintiffs were entitled to examine Mr. Wang under Rule 39.03 of the Rules of Civil Procedure, as he was in a position to provide relevant evidence regarding whether the Gamma foreign defendants do business in Ontario.

The court dismissed the motion to quash, finding that the plaintiffs had satisfied the relevancy and evidentiary screening and that the proposed examination was not an abuse of process.

Following dismissal of an application seeking removal of a fence demarcating a right of way, the court determined the appropriate costs award.

The successful respondent sought substantial indemnity costs exceeding $30,000, arguing the applicant pursued untenable legal positions and rejected reasonable settlement offers.

The court held that while the respondent was entirely successful and entitled to costs, the case was not sufficiently exceptional to justify substantial indemnity costs.

Applying the principles of reasonableness under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the claimed amounts and fixed costs at a fair and reasonable level.

A preliminary issue arose on a summary judgment motion regarding whether a party could reference the opinion and recommendations of an evaluator retained by the parties during a dispute resolution process connected to a construction project.

The moving party argued that the communications were protected by mediation confidentiality under the Rules of Civil Procedure.

The court held that regardless of the label applied to the process, the communications formed part of settlement discussions intended to resolve a litigious dispute and were therefore subject to settlement privilege.

The evaluator’s reports and recommendations, and any related documentation, were found to be privileged and inadmissible.

Portions of an affidavit referencing those materials were ordered struck.

The defendants brought a motion to strike portions of a statement of claim alleging negligence and abuse of position against a band council, its employees, and police officers arising from a disputed land transfer on reserve lands.

The court held that employees of a band council are analogous to municipal officials and benefit from protections against personal liability for acts performed in good faith in the exercise of public duties.

The pleadings failed to disclose a cause of action against the individually named defendants and did not adequately particularize how the police conduct caused the plaintiff’s alleged damages.

The claims against the individual defendants were struck, but the negligence action against the band council itself was allowed to proceed.

The plaintiff was granted leave to file a fresh statement of claim compliant with the Rules of Civil Procedure and could amend to plead fraud, bad faith, or dishonesty if supported.