P. Summers

The plaintiff appealed a Master's order requiring it to answer certain undertakings and refusals arising from cross-examinations on affidavits filed in support of a motion for partial summary judgment.

The questions concerned matters including production and packaging arrangements, trademark ownership and assignments, damages evidence, product pricing, and complaints to federal authorities relating to alleged grey market goods.

The plaintiff argued the questions were irrelevant, exceeded the proper scope of cross-examination on affidavits, and were disproportionate.

The court held that the questions were relevant to issues raised by the defendants’ restraint of trade and trademark defences and that proportionality determinations by the Master were entitled to deference.

The Master did not err in concluding that the plaintiff bore an initial obligation to explain if requested information was not readily available or would be unduly onerous to obtain.

The defendants brought a motion seeking answers to undertakings and responses to questions refused during cross‑examinations of affiants whose affidavits were filed by the plaintiff in support of a motion for summary judgment.

The court applied the governing test for refusals in documentary and oral discovery on motions, considering relevance, breadth of the request, and claims of privilege.

Numerous refusals relating to corporate relationships, website issues, production agreements, trademark assignments, damages, pricing, and regulatory compliance were found relevant and ordered answered, while others were denied as overly broad or irrelevant.

The court also ordered the listing of documents claimed to be privileged to permit further consideration of privilege claims.

A re‑attendance for further cross‑examination was permitted following the provision of answers.

The court determined costs following a trial in which the plaintiff obtained judgment exceeding its earlier settlement offer.

The issues included the appropriate prejudgment interest rate, the applicable scale of costs under Rule 49.10 of the Rules of Civil Procedure, and whether the plaintiff’s claimed fees were excessive.

The court rejected the plaintiff’s request for a higher prejudgment interest rate and applied the statutory rate under the Courts of Justice Act.

Because the plaintiff obtained a judgment more favourable than its settlement offer, it was entitled to partial indemnity costs to the date of the offer and substantial indemnity costs thereafter.

The court reduced the fee component by 12% to reflect the substantial indemnity scale rather than full indemnity and fixed total fees at $50,000 plus HST, with disbursements of $5,134.16 plus HST.

The plaintiff drywall contractor brought a construction lien action against the defendant homeowner for unpaid work and extras on a custom home project.

The parties disputed the contract price, whether certain work constituted extras, alleged cash payments, and back-charges for incomplete work and mold remediation.

The court found the defendant fundamentally breached the contract by failing to pay and denying the plaintiff access to the site.

The court awarded the plaintiff $78,262.50 plus partial GST, allowing some claims for extras while crediting the defendant for incomplete work, and dismissed the defendant's claims regarding cash payments and mold remediation.

Following a four‑day trial under the Simplified Rules in which the action was dismissed, the defendant sought substantial indemnity costs relying on a Rule 49 offer to settle.

The plaintiff argued that no costs should be ordered or that costs should be limited to a modest amount due to the nature of simplified procedure and the unsettled state of the law on the facts.

The court accepted that costs in Simplified Rules proceedings are often significantly lower than ordinary trial costs and should be assessed with that expectation in mind.

Considering the Rule 49 offer and the factors in Rule 57, the court fixed the defendant’s costs at a reduced amount inclusive of taxes and disbursements.

A volunteer at a community radio station alleged harassment by another volunteer and sought an injunction requiring the station to enforce its harassment policies, along with damages.

The court considered whether it should intervene in the internal affairs of a private volunteer organization that had not strictly followed its written harassment procedures.

Applying jurisprudence governing judicial oversight of voluntary associations, the court held that internal decision-making in such organizations attracts deference and intervention should be exercised cautiously.

Although the station did not strictly comply with its policies, it acted in good faith, made repeated efforts to resolve the dispute, and substantially complied with the spirit of its procedures.

In the circumstances, judicial intervention was not warranted.