Risa Sokoloff

Following the dismissal of the defendant’s motion for summary judgment, the court determined the appropriate costs award.

The dispute involved a commercial claim for damages arising from an allegedly faulty communications system supplied by the defendant, with the motion seeking to limit the plaintiff’s potential recovery through contractual provisions.

The defendant argued that costs should be reduced due to the plaintiff’s non-compliance with a scheduling order and alleged duplication of legal work between counsel and instructing solicitor.

The court held that no prejudice arose from the procedural irregularities and rejected the duplication argument, emphasizing the value of briefing specialized advocacy counsel.

Partial indemnity costs of the motion were awarded to the plaintiff in full as claimed.

The defendant brought a summary judgment motion seeking a determination that the plaintiff’s damages were contractually limited to amounts paid under a product purchase and services agreement containing a limitation of liability clause.

The dispute arose after the defendant temporarily shut down communication modules supplied after the original agreement when payment was allegedly outstanding.

The plaintiff argued that the limitation clause did not apply to subsequently supplied modules because the invoices purporting to incorporate the agreement’s terms were issued only after the orders were placed and were not supported by a written amendment as required by the agreement’s entire agreement clause.

The court held that the defendant failed to establish that the limitation clause applied to the later transactions and found the contractual documentation insufficient to incorporate those terms.

Summary judgment was therefore refused and the court determined that the limitation clause did not apply to the later modules.