Paul K. Lepsoe

The Catholic entities appealed an order allowing residential school survivors to archive their Independent Assessment Process (IAP) documents with the National Centre for Truth and Reconciliation without the consent of alleged perpetrators.

Canada cross-appealed, arguing the IAP documents were government records subject to federal archiving and privacy legislation and could not be destroyed.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that only claimants have the right to decide whether to archive their documents.

The Court further held that the IAP documents are not government records because they are not under government control, and upheld the supervising judge's order to destroy the documents after a 15-year retention period to protect the claimants' privacy and confidentiality.

The appellants appealed a Master’s decision dismissing their motion to remove opposing counsel due to an alleged conflict of interest arising from a prior limited solicitor‑client interaction.

The appellants also appealed the Master’s costs award.

The court held that the Master committed no palpable and overriding error in finding that any privilege in a legal invoice had been waived and that the earlier retainer was not sufficiently related to the present dispute to justify removal of counsel.

The court further held that the lawyer’s potential role as a witness was speculative and did not justify disqualification.

The appeal and the challenge to the costs award were dismissed.

This was a costs endorsement following an unsuccessful motion to remove counsel for alleged conflict of interest.

The court held the successful responding parties were presumptively entitled to costs, but rejected their request for substantial indemnity costs because the withdrawal offer was not a Rule 49 offer and contained no real compromise.

In fixing costs, the court considered Rule 57.01 factors, the complexity and importance of a motion to remove counsel, and the reasonable duplication inherent in retaining both counsel of record and outside counsel.

The court reduced portions of the claimed time and fixed partial indemnity costs at $25,026.45 inclusive of HST and disbursements.

Following a motion in a simplified procedure action involving a claim for corporate oppression and production of documents, the court determined the issue of costs.

The moving party had largely succeeded on the underlying motion, including obtaining leave to amend the statement of claim to add an oppression remedy under the Canada Business Corporations Act and compelling answers to undertakings and production of financial records.

Applying Rule 57 of the Rules of Civil Procedure, the court considered complexity, proportionality, success, conduct of the parties, and the time and rates claimed.

The court held that the success on the motion justified an award of costs, but that the conduct alleged did not warrant elevated costs.

Costs were therefore fixed on a partial indemnity scale.

The plaintiff brought a motion in a simplified procedure action seeking leave to amend the statement of claim to add an oppression claim under s. 241 of the Canada Business Corporations Act, and to compel answers to undertakings and production of corporate records.

The court held that an oppression claim could be advanced within a Rule 76 simplified action and granted leave to amend the claim.

However, the court limited document production to records relevant to payments, financial statements, bank records, and financing related to the defendant corporation.

Production requests relating to an affiliated corporation were largely refused as irrelevant.

The court also ordered responses to certain discovery undertakings concerning payments to specific individuals and imposed limits on further discovery.

The applicant sought property tax exemptions under s. 3(1), para. 23 of the Assessment Act for two amusement attractions at a waterpark, along with related pump houses and structures housing operational machinery.

The court interpreted the statutory exemption for “mechanical amusement devices on which a person rides,” considering the purpose of the exemption and principles of tax statute interpretation.

It held that a mechanically generated lazy river ride and wave pool qualified as mechanical amusement devices because patrons experience mechanically produced movement on the water.

However, buildings housing the pumps and equipment were not exempt, as they constituted buildings rather than machinery or equipment, though specific concrete foundations supporting machinery were exempt.

The court ordered amendments to the assessment roll and refunds of any taxes improperly levied.

The appellant, a non-party witness, appealed an order directing him to attend for examination pursuant to a summons issued by the applicant.

The applicant had commenced an application against the Conservative Party of Canada.

A previous motion by the Conservative Party to quash the summons had been dismissed.

The Court of Appeal dismissed the appeal, finding no error in the order requiring the appellant's attendance, as the appellant's evidence was potentially relevant and he had not brought his own motion to quash the summons.

The court also refused to stay the examination pending a motion to stay the underlying application.

The appellants appealed a motions judge's decision finding that time was of the essence in a contract and that a fundamental breach had occurred.

The appellants also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motions judge's application of the law from Sail Labrador Ltd. v. Challenge One (The).

The court also refused to admit the fresh evidence, concluding it did not meet the test for admission and was not relevant to the finding that time was of the essence.

The respondent in an appeal brought a motion to quash the portion of the appeal relating to a refusal to order the production of documents, and for an order requiring the appellant to post security for costs.

The Court of Appeal granted the motion to quash, finding the production order was interlocutory and required leave to appeal to the Divisional Court.

However, the Court dismissed the motion for security for costs, holding that such an order cannot be made against a defendant/appellant who was forced into court by the plaintiff.

Costs of the motion were awarded to the appellant.