Richard G. Dearden

Following dismissal of a motion for leave to appeal concerning the defendant’s discovery of the plaintiff, the plaintiff sought costs.

The court applied the factors under Rule 57 of the Rules of Civil Procedure and found the defendant’s motion lacked merit and should not have been brought.

The plaintiff had served a written offer of settlement proposing discontinuance without costs, which the defendant refused.

Because the result exceeded the offer, the court awarded partial indemnity costs until the offer date and substantial indemnity costs thereafter.

Costs of $4,500 inclusive of disbursements and tax were ordered payable by the defendant.

The court determined the appropriate costs following a motion in which the defendant sought leave to appeal rulings made during the cross-examination of a witness.

The plaintiff sought costs of approximately $14,000 to $19,000, while the defendant opposed and requested costs against the plaintiff.

The court found that the plaintiff was largely successful because the defendant’s motion for leave to appeal was effectively dismissed after it was determined that litigation privilege did not apply to the witness affidavit in question.

Applying Rule 57 factors, the court held that costs should be awarded on a partial indemnity scale but significantly reduced due to concerns about the utility and importance of the pre‑trial examination issue.

The defendant was ordered to pay reduced costs of $5,600 to the plaintiff.

The plaintiff sought costs on a substantial indemnity basis following a successful refusals motion regarding the defendant's examination for discovery.

The defendant had initially refused to answer 62 questions but answered most of them in writing after the motion was brought.

The court found the defendant's conduct in refusing to answer during oral discovery caused unnecessary delay and expense, but was not so unreasonable as to warrant substantial indemnity costs.

Costs were fixed at $14,678 inclusive of disbursements on a partial indemnity basis.

The plaintiff sought costs following a successful refusals motion arising from the defendant’s examination for discovery in a civil action seeking significant damages.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and the conduct of the parties.

The defendant had refused numerous questions during discovery, forcing the plaintiff to bring a lengthy motion supported by a detailed refusals and undertakings chart.

Although the defendant later answered many questions before the motion was heard and succeeded on some issues, the court found the plaintiff overwhelmingly successful.

Costs were awarded on a partial indemnity basis rather than substantial indemnity because the defendant’s conduct, while causing delay, did not justify the higher scale.

Following a refusals motion arising from examinations for discovery in a libel action, the plaintiff sought costs on a substantial indemnity basis, alleging the defendant made unfounded accusations of improper interference and insufficient document searches.

The defendant opposed the request and argued the plaintiff should receive no costs because her employer was funding the litigation and because the claimed time and rates were excessive.

The court held that third‑party reimbursement of legal fees does not disentitle a successful party from recovering costs and that the plaintiff had been completely successful on the refusals motion.

Although the defendant’s conduct did not justify substantial indemnity costs, partial indemnity costs were appropriate.

The defendant’s alleged inability to pay was given little weight.

In a defamation action, the defendant sought leave to appeal two interlocutory decisions concerning cross‑examination on an affidavit and a discovery motion.

The court reviewed the scope of permissible cross‑examination on affidavits, including questions relating to credibility, bias, and matters raised in the affidavit.

It held that the motion judge correctly allowed many questions aimed at testing independence and credibility of the deponent but protected certain communications between the defendant and the deponent under litigation privilege.

Leave to appeal was largely denied, with limited conditional leave relating to questions implicating litigation privilege and the drafting of the affidavit.

The defendant’s separate motion for leave to appeal a discovery decision was dismissed after the defendant failed to file a factum or comply with court directions.

The defendant brought a motion to stay or dismiss a defamation action as an abuse of process, alleging that the plaintiff’s employer funding her legal costs constituted maintenance and champerty.

The court excluded supplemental affidavits filed after cross‑examinations as irrelevant and inadmissible under the Rules of Civil Procedure and prior case management rulings.

It held that the employer’s decision to fund the plaintiff’s legal fees was justified because the alleged defamatory statements related to work performed in the course of her employment and the plaintiff had independently decided to commence the action.

The court found no evidence of an improper motive, profit‑sharing arrangement, or trafficking in litigation.

Accordingly, the motion alleging champerty and maintenance was dismissed.

In a defamation action arising from blog posts referring to the plaintiff using a racially charged term, the plaintiff brought a motion to compel answers to numerous refusals and undertakings from the defendant’s examination for discovery.

The court considered the scope of permissible discovery under Rule 31.06(1) of the Rules of Civil Procedure and assessed the relevance of the disputed questions to issues including malice, fair comment, damages, and publication.

The court ordered the defendant to answer several questions relating to the factual basis for his fair comment defence, communications with media and on social media, potential witnesses, and information relevant to his limitation defence.

Certain questions were not required to be answered where they sought privileged information or were irrelevant to the issues in the libel action.

The defendant brought a refusals motion seeking orders compelling the plaintiff to answer discovery questions, produce additional documents, and permit further examination for discovery in a defamation action arising from statements made in a blog post.

The court reviewed numerous disputed questions relating to alleged communications with university officials, the plaintiff’s interpretation of allegedly defamatory statements, employment records, and other documents.

The court held that many of the questions sought irrelevant information, including the plaintiff’s subjective interpretation of allegedly defamatory words, which is determined objectively by the trier of fact.

The court further found that the plaintiff had adequately answered the discovery questions and produced all relevant documents in her possession.

The motion for further answers, additional production, and further discovery was dismissed.

Following dismissal of three motions for leave to appeal interlocutory decisions in ongoing civil litigation, the court addressed costs.

The responding parties sought substantial indemnity costs on the basis that the self‑represented defendant had engaged in vexatious litigation and judge‑shopping through numerous unmeritorious motions.

The court accepted that the volume of motions suggested abuse of process but concluded that some of the issues raised were novel and not entirely devoid of merit.

Substantial indemnity costs were therefore not warranted.

Partial indemnity costs were awarded with a 15 percent reduction to reflect limited success by the defendant on certain procedural points and some duplication in the responding parties’ work.

The defendant sought leave to appeal three interlocutory decisions arising from a defamation action, including a ruling dismissing a refusals motion, a case management judge’s refusal to schedule a motion to set aside that ruling, and a subsequent decision dismissing a further refusals motion.

The court granted an extension of time to bring the leave applications but found that none met the stringent requirements under Rule 62.02(4) of the Rules of Civil Procedure.

The defendant alleged a reasonable apprehension of bias against a prior judge based on the existence of a scholarship memorializing the judge’s son at the University involved in the litigation and a boardroom named after him by the University’s law firm.

The court held that these circumstances could not reasonably give rise to an apprehension of bias and emphasized the strong presumption of judicial impartiality.

Leave to appeal each interlocutory decision was therefore refused.

In a libel action, the plaintiff brought a refusals motion seeking an order compelling a deponent to re‑attend cross‑examination and answer questions she had refused on instructions from the defendant.

The court considered whether questions relating to the witness’s relationship with the defendant, prior criticisms of the plaintiff, drafting of the affidavit, and communications between the witness and the defendant were relevant.

Applying authorities on cross‑examination to establish bias and credibility, the court held that inquiries aimed at testing a witness’s reliability, independence, and potential partiality are permissible.

Most of the refused questions were found relevant to credibility and weight of the affidavit evidence.

The witness was ordered to re‑attend and answer specified questions and any follow‑up questions.

The defendant sought leave to appeal three interlocutory rulings in a defamation action, including decisions dismissing a refusals motion and a case management decision declining to schedule a motion alleging judicial bias.

The court granted an extension of time to seek leave but held that the defendant failed to meet the stringent requirements under Rule 62.02(4) of the Rules of Civil Procedure.

Allegations of reasonable apprehension of bias arising from a memorial scholarship and law firm tribute connected to the judge’s deceased son were rejected as untenable and incapable of grounding an objective concern of partiality.

The court also held that the case management judge properly declined to schedule a motion seeking to set aside another Superior Court judge’s decision.

Leave to appeal all impugned interlocutory decisions was refused.

Following a successful response to a refusals motion, the plaintiff sought substantial indemnity costs arising from the defendant’s extensive and unsuccessful motion materials seeking answers to numerous discovery questions.

The defendant, self‑represented, argued that costs should be reduced due to his status, alleged inability to pay, and the fact that the plaintiff’s legal fees were funded by her employer.

The court applied the factors in Rule 57 of the Rules of Civil Procedure and held that self‑representation does not reduce responsibility for costs when a party brings an extensive and unsuccessful motion.

Although the motion materials were excessively lengthy, the conduct did not justify substantial indemnity costs.

Partial indemnity costs were fixed with reductions to certain research time and preparation claims.

In a defamation action arising from blog posts criticizing the plaintiff’s report on systemic racism at a university, the defendant brought a motion addressing refusals made during cross‑examination on a champerty and maintenance motion.

The defendant argued that the university’s agreement to fund the plaintiff’s legal fees constituted champerty and maintenance and sought answers to questions concerning the plaintiff’s academic background, financial situation, selection of counsel, and communications with the university.

The court held that most of the questions were irrelevant to the champerty motion because the university had admitted it agreed to fund the litigation and the details sought did not assist in determining whether the arrangement involved improper intermeddling or profit‑sharing.

The court also rejected an attempt to introduce expert opinion evidence regarding email communications as irrelevant and unnecessary.

The refusals were largely upheld and a request to strike re‑examination evidence was denied.

Following an unsuccessful motion by a non-party seeking intervener status in a civil action, the court determined costs.

The moving party argued that costs should not be awarded due to his status as an impecunious student.

The court held that alleged impecuniosity generally should not affect costs determinations and emphasized that the moving party had been warned costs would be sought if the motion proceeded.

The court also found that the moving party engaged in unreasonable conduct after the motion by sending emails attacking counsel and attempting to pressure the plaintiff to withdraw her claim for costs.

Costs were ordered payable to both opposing parties.

Following the dismissal of the defendant's motion for leave to appeal, the plaintiff and the University of Ottawa sought costs on a substantial indemnity basis.

The court found that while the defendant's motion was barred by res judicata and collateral attack, his conduct was not totally unreasonable or vexatious.

Costs were awarded on a partial indemnity basis.

The court ordered the self-represented defendant to pay $5,500 plus HST and disbursements to the plaintiff, and $3,500 plus HST and disbursements to the University of Ottawa, noting some duplication of costs.

The applicant sought leave to appeal a case management decision refusing permission to bring a motion requesting that members of the public be allowed to attend cross-examinations on affidavits conducted in relation to a champerty motion in a defamation action.

The court considered the test for leave to appeal under rule 62.02(4) of the Rules of Civil Procedure.

It held that no conflicting authority existed and there was no reason to doubt the correctness of the decision below.

The issue had already been decided earlier in the proceeding and permitting the motion would constitute an abuse of process and collateral attack.

The court also confirmed that cross-examinations on affidavits conducted before an examiner are not subject to the open court principle.

The defendants brought a motion under Rules 21 and 25 of the Rules of Civil Procedure to strike portions of a Fresh As Amended Statement of Claim arising from a dispute between university students and a university regarding campus activities and disciplinary actions.

The plaintiffs alleged Charter breaches, negligence, and other claims relating to the university’s response to their activities and alleged involvement with police.

The court held that the Charter claims disclosed no reasonable cause of action because the pleadings failed to establish that the university was implementing a government program or acting as government under s. 32 of the Charter.

Claims against the individual defendants were also struck as the pleadings did not establish personal liability outside the scope of their employment.

However, the negligence claim against the university itself was permitted to proceed as the amended pleadings sufficiently alleged a potential duty of care and resulting harm.