Peter T. Hollinger

The plaintiff, a not-for-profit corporation representing aboriginal communities, brought an action for trespass and damages against the defendants, who claimed to be the elected representatives of a member First Nation.

The plaintiff moved to strike portions of the defendants' statement of defence and their entire counterclaim.

The court struck certain paragraphs of the statement of defence that pleaded irrelevancies, with leave to amend one paragraph.

The court also struck the counterclaim in its entirety, finding that claims for interference in an election or internal governance are not causes of action known to law, and that the allegations of defamation and injurious falsehood lacked the necessary elements and particulars.

Costs decision following a motion seeking production of further and better affidavits of documents and cross‑examination on the supplementary affidavit of documents in environmental contamination litigation.

The defendants were successful in obtaining an order requiring the plaintiffs to serve a complete sworn supplementary affidavit of documents after the plaintiffs failed to comply with an earlier case management order.

However, the plaintiffs successfully resisted a request for cross‑examination on the affidavit of documents and defeated allegations of contempt seeking substantial indemnity costs.

Applying the discretion under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court assessed costs based on overall success, proportionality, and reasonableness.

Partial indemnity costs were awarded but reduced to reflect the plaintiffs’ success on certain issues.

The defendants moved for an order requiring the plaintiffs to provide a sworn and certified further and better supplementary affidavit of documents and to produce the proposed deponent for cross‑examination.

The action concerned alleged environmental contamination from a fuel spill on reserve lands.

The court held that although certain environmental consulting documents were in the plaintiffs’ possession, they were subject to a restriction imposed by the consultant and therefore not within the plaintiffs’ control for production without permission.

The plaintiffs were ordered to serve a sworn supplementary affidavit of documents listing such restricted documents in Schedule B if permission for disclosure was not obtained.

The request to compel cross‑examination of the deponent was refused on proportionality grounds, given the remote location of the First Nation and the limited utility of such an examination.