Sarah E. Russel

The plaintiff sought costs of $28,587.29 on a partial indemnity scale following a motion regarding a defence medical examination where success was divided but the plaintiff achieved greater success.

The defendants argued that no costs should be awarded or that they should follow the event, contending the hours claimed were excessive for a two-hour motion.

The court agreed the hours claimed were excessive and fixed costs at $6,500 payable by the defendants to the plaintiff.

The defendants brought a motion to compel the plaintiff to attend a defence medical examination shortly before a scheduled medical negligence trial.

The plaintiff opposed and brought a cross-motion to strike portions of the defendants' motion record, alleging a breach of settlement privilege.

The court found that the defendants did not require leave under Rule 48.04 to bring the motion, as they had not consented to the action being placed on a trial list.

However, the court dismissed the motion for a medical examination, finding it would prejudice the plaintiff given the impending trial date.

The cross-motion was also dismissed, as the impugned communications did not contain offers or compromises protected by settlement privilege.