Galea v. Wal-Mart, 2016 ONSC 1803

COURT FILE NO.: CV-11-0901-00

DATE: 2016 03 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

GAIL GALEA

Natalie C. MacDonald and Cody Yorke for the Plaintiff

Plaintiff

• and -

WAL-MART CANADA CORP.

Jonathan L. Dye, for the Defendant

Defendant

HEARD: January 27, 2016

REASONS FOR THE RULING AND COSTS DECISION

ON THE MOTION FOR LEAVE UNDER RULE 53.08

Justice M.G. Emery

1Late on the afternoon of January 26, 2016, Mr. Dye, as counsel for the defendant Wal-Mart Canada Corp., requested leave from this court to introduce a document as admissible evidence that Wal-Mart had not disclosed in its affidavit of documents. Mr. Dye was midway through his cross-examination of the plaintiff, Gail Galea, at the time. I adjourned the trial for the purpose of holding a voir dire to determine whether leave should be granted under Rule 58.03 to allow the document into evidence.

2The voir dire took place the following day. For reasons to follow, I gave my ruling that day granting leave, on terms. These are those reasons.

The 2010 Grid

3Gail Galea was a long time employee of Wal-Mart Canada who reported to senior management at the time her employment was terminated in November, 2010. In the Fresh as Amended Statement of Claim, Ms. Galea seeks damages for wrongful dismissal and breach of contract in the amount of $750,000, moral damages in the amount of $100,000 and punitive damages in the amount of $100,000. She is also requesting her costs of the action on a substantial indemnity basis.

4The document at issue is known as the 9 Box Grid Guidelines – Spring 2010, also referred to as the “2010 Grid”. The 2010 Grid was marked as Exhibit 1 on the voir dire. Ms. Galea states that the grid that was applicable to her employment at Wal-Mart in 2010 is a key issue in the case. Ms. MacDonald made reference to paragraph 18 of the Fresh as Amended Statement of Claim in the trial record, that makes the following allegation:

18. In or about August 2010, the plaintiff learned, for the first time, that her internal rating had been changed from Q1 to Q5, thereby ensuring that the plaintiff would never be able to find a comparable position of employment within Wal-Mart. At the same time, the plaintiff learned that her associate opinion survey (AOS) score was misstated. Both of these facts were critical to the annual PAR process that had then just taken place...

5Ms. Galea further alleges that Mr. Cheesewright, President of Wal-Mart Canada, had downgraded her internal rating at Wal-Mart unbeknownst to her. She alleges that, at the same time, Mr. Cheesewright represented to her that he was fully supporting her in her efforts to secure a comparable position of alternate employment within Wal-Mart.

6The plaintiff Gail Galea then makes the following allegation of bad faith at para. 20 of the Amended Statement of Claim:

20. The plaintiff pleads that the actions of Mr. Cheesewright and Mr. McMillon, as summarized in paragraphs 16 through 19 above, constituted an egregious act of bad faith on the part of the defendant. By surreptitiously changing the plaintiff’s rating behind her back Mr. Cheesewright effectively ensured that the plaintiff would not be able to secure a position within Wal-Mart worldwide that was commensurate with her substantial skills and experience.

Contextual Facts

7The 2010 Grid is an important piece of evidence because grids like it are used to rate people employed by Wal-Mart as to their strengths or weaknesses. Wal-Mart uses a grid to rank employees’ prospects for advancement or promotion within the company. The 2010 Grid is also significant because of its difference to the grid introduced by Ms. Galea in her direct evidence and marked as Exhibit J.

8According to the plaintiff in her direct evidence, Mr. Cheesewright and Wal-Mart changed Ms. Galea’s employment rating from Q1, which recognized Ms. Galea as a high performance employee with immediate prospects for promotion, to a Q5 rating. According to the grid marked as Exhibit J, a Q5 rating would inhibit her advancement and characterized her as not currently promotable in 2010. Ms. Galea gave evidence that Wal-Mart relied heavily on the grid marked as Exhibit J when making its decision regarding any employee.

9Wal-Mart surprised Ms. Galea and her counsel at Mr. Cheesewright’s examination for discovery when Mr. Cheesewright produced a grid developed by Wal-Mart to rate employee performance in 2012. This particular grid, also referred to as the 2012 Grid, had been developed after Ms. Galea had been terminated from her employment with Wal-Mart.

10The 2010 Grid tendered at trial was never disclosed by Wal-Mart in its affidavit of documents. It is equally disturbing to this court that it was not produced at Mr. Cheesewright’s examination for discovery on July 19, 2012. Compounding matters, Wal-Mart did not disclosed that document when answers to Mr. Cheesewright’s undertakings given at his examination for discovery were provided in a letter sent to counsel for the plaintiff on December 30, 2015. Where Mr. Cheesewright had been asked to produce “box grids” for years 2007, 2008, 2009 in 2010 if they were different than the 2012 Grid he had produced at his examination for discovery, the answers provided on December 30, 2015 contained a response that “no such documents for those years have been located, but they were likely the same or substantially similar.”

11It has not escaped my attention that Ms. MacDonald wrote to counsel for Wal-Mart on five occasions throughout 2014 and 2015 to request those answers.

Reasons for Ruling

12Mr. Dye argues that Ms. Galea will not suffer prejudice that cannot be compensated by way of an adjournment or costs if leave was granted to Wal-Mart to introduce the 2010 Grid as admissible evidence, and emphasized the mandatory nature of the language in Rule 53.08 that reads as follows:

53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. O. Reg. 284/01, s. 13.

(2) Subrule (1) applies with respect to the following provisions:

1. Subrule 30.08 (1) (failure to disclose document).

2. Rule 30.09 (failure to abandon claim of privilege).

3. Rule 31.07 (failure to answer on discovery).

4. Subrule 31.09 (3) (failure to correct answers on discovery).

5. Subrule 53.03 (3) (failure to serve expert’s report).

6. Subrule 76.03 (3) (failure to disclose witness). O. Reg. 284/01, s. 13; O. Reg. 260/05, s. 11.

13Ms. Galea argues that she had structured her case with respect to the change in her performance rating based on the undated grid marked as Exhibit J as she had no knowledge of any other grids that applied to her or under which Wal-Mart was operating to rate the performance of employees in 2009 and 2010. I was informed by Mr. Dye that he provided a copy of the 2010 Grid, along with a copy of the employee performance grid from Wal-Mart for 2009, 2008 and 2007 on Thursday evening of the previous week, being the third day of the trial and in the course of Ms. Galea’s evidence in-chief. Mr. Dye explained that Wal-Mart had only just discovered the existence of those documents as the reason for the late disclosure of the 2010 Grid.

14Wal-Mart made submissions that it ought to be granted leave to introduce the 2010 Grid as admissible evidence because of the relevance of that document to the allegations made by Ms. Galea about the effect the change of her performance rating had on her employment as well as its relation to the damages she is seeking. Mr. Dye likely introduced that document to Ms. Galea in the course of her cross examination to satisfy Wal-Mart’s obligations to confront her with that evidence under the rule in Browne v. Dunn if Wal-Mart intends to introduce that document as an exhibit through one of its witnesses.

15I was asked to consider whether Ms. Galea would suffer prejudice that was so significant that it could not be compensated by way of an adjournment or costs, having regard to all of the circumstances. Prejudice is the pivotal determination because Rule 53.08 makes it mandatory for the court to grant leave for the document to be tendered in evidence unless it can be shown that it will cause prejudice that cannot be compensated by costs or an adjournment.

16Ms. MacDonald relies on the decision of the Court of Appeal in Iannarella v. Corbett, 2015 ONCA 110, in her submissions to oppose the granting of leave. In Iannarella v. Corbett, the Court of Appeal was asked to review, among other things, whether surveillance evidence that was not disclosed in the defendant’s affidavit of documents should not have been allowed to be shown as an exhibit during a jury trial. Counsel for the defence introduced the video disc of the surveillance during the plaintiff’s cross-examination, seeking to use it to impeach the credibility of that witness. The trial judge had permitted counsel to play the video, to cross-examine the plaintiff on its contents, and to make the video an exhibit even though the defendants had not disclosed the existence of the surveillance in an affidavit of documents and had not provided particulars of it.

17After a full review of the disclosure and production obligations under the Rules of Civil Procedure and upon finding that the defendants had not met their obligations under the Rules of Civil Procedure to disclose the surveillance, Justice Lauwers held that the trial judge should not have granted leave for the use of the surveillance, stating at paragraph 83 that:

83At the point in this jury trial where the issue of the admissibility of the surveillance arose, the main benefits that the appellants might have obtained through timely disclosure of the surveillance particulars were gone. The appellants did not have the benefit of considering the surveillance in assessing the possibility of pre-trial settlement, and their counsel had little time to prepare an appropriate examination in chief of Mr Iannarella. The prejudice was baked in and the trial was well under way. In my view the application of the test for leave to introduce the surveillance should have led the trial judge to refuse its admission even for the purpose of impeachment.

18It would appear that prejudice of this nature will preclude the introduction of a document that has not been disclosed in a party’s affidavit of documents as admissible evidence at trial either as substantive proof of a fact, or for the purposes of impeaching the credibility of another witness. See also Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, (2000) 2000 16946 (ON CA), 51 O.R. (3d) 97 (Ont.C.A.).

19Mr. Dye referred to a decision of this court in Bishop-Gittens v. Lim [2015] O.J. 2861 which makes reference to the decision of the Court of Appeal in Iannarella v. Corbett. In Bishop-Gittens v. Lim, the subject was again whether surveillance that was not disclosed in the defendant’s affidavit of documents should be allowed as admissible evidence under Rule 53.08 for the purposes of impeaching the plaintiff’s evidence at trial. Justice McKelvey reviewed the strict requirements of a party to disclose all relevant documents in an affidavit of documents, and found the defendants to be in clear breach of its obligations under the applicable rules. He also found that Rule 31.09(1)(b) applied to a situation where a document came into existence after a party had been examined for discovery and that party was required to “forthwith provide the information in writing to every other party”.

20In Bishop-Gittens, the issue of the surveillance taken by the defendant arose after the case had been called for trial and a jury had been selected. Prior to opening submissions, the plaintiff brought a motion to exclude the surveillance evidence. Justice McKelvey concluded that the prejudice on the facts before him was not so great to the plaintiff that it could not be compensated by way of an adjournment or costs when the objectives of the civil justice system were considered. At paragraphs 17 and 18, he stated as follows:

17This is not a case like Iannarella where the court found that the prejudice to the plaintiff was “baked in” because the trial was well under way and the issue was not apparently raised until the defence was conducting its cross examination of the plaintiff. In the present case, the parties have not yet made their opening submissions to the jury, nor has any evidence been called. Thus, neither party has taken any steps at trial which could result in prejudice by not knowing that this evidence might be referred to at trial.

18In addition, any prejudicial effect by the late failure to disclose the surveillance can be addressed through an adjournment of the trial if requested by the plaintiff’s solicitor. Any prejudice with respect to costs can be addressed by requiring the defendant to pay costs to the plaintiff arising out of any adjournment. In order to further minimize any potential prejudice, I further order that the defendant forthwith produce copies of the video surveillance to the plaintiff, so the plaintiff will have the opportunity to view the surveillance video prior to giving her evidence.

21I consider the circumstances before me to be somewhere in the middle between the circumstances in the Iannarella case, and the facts in Bishop-Gittens. Here, the Ms. Galea received production of the 2010 Grid and grids for three preceding years while she was in the course of her examination in chief. Her counsel could have asked her questions about the grids that had just been disclosed in the course of that direct examination. I can understand why she did not do so in view of the fact that she had not been given the opportunity to examine the defendant for discovery on those documents. That said, the circumstances were not so severe as those in Iannarella where the plaintiff was confronted with the surveillance video during his cross-examination in front of a jury, and the opportunity to deal with that evidence on his own terms was lost. In my view, the prejudice caused by the introduction of the 2010 Grid is not “baked in” as the trial is at a stage where any real or perceived prejudice can be compensated by way of an adjournment and costs.

22To address the prejudice to Ms. Galea’s case by granting leave, and to satisfy her objection that she did not have the opportunity to examine Mr. Cheesewright for discovery about the 2010 Grid or to give direct evidence about it, I granted leave on the following terms:

1. Ms. Galea would take the witness stand after this ruling, and Mr. Dye would resume his cross examination.

2. Mr. Dye would be entitled to introduce the 2010 Grid to Ms. Galea as he resumed his cross examination. When he did so, Ms. Galea testified that she could not identify that document. The 2010 Grid was therefore marked as Exhibit “V” (as in “Roman Numeral 5”) for identification.

3. The trial would be adjourned to Thursday or Friday morning to permit Ms. MacDonald to conduct a further examination for discovery of Mr. Cheesewright as the representative of the defendant Wal-Mart. After consulting with counsel after making the ruling, it was decided that the trial would be adjourned to 9:30 a.m. on Friday, January 29, 2016.

4. Mr. Cheesewright would be examined for discovery as the representative for the defendant Wal-Mart on the 2010 Grid, and to be produced for that purpose at 10:00 a.m. sharp on Thursday, January 28, 2016 at the offices of Victory Verbatim, in the Ernst and Young Tower at 222 Bay Street, Suite 900, Toronto Ontario, M5K 1H6. This examination for discovery would be limited to two hours in duration, and be conducted on the issue of the 2010 Grid including, but not limited to facts concerning:

a) the origin of the 2010 Grid;

b) where it was located and where it has been located since its inception;

c) what efforts were made to find it for inclusion in the defendants affidavit of documents, and to answer the undertakings given by Mr. Cheesewright in the chart provided on December 30, 2015;

d) why it was not produced until Thursday, January 7, 2016 to counsel for Ms. Galea during the first week of trial;

e) what relevance or application to the facts the 2010 Grid had at any time relating to Ms. Galea’s employment with Wal-Mart in 2010, 2011 or 2012; or

f) his involvement with its application to Ms. Galea’s employment.

5. Counsel for the plaintiff would be given generous latitude to re-examine on any issue relating to the Grids marked as exhibits at trial or for identification, both as to their meaning, effect or as they relate to each other.

23I also consider the probative nature of the 2010 Grid to outweigh the prejudice that might arise for either party by its introduction. The important thing is for the court to have all relevant and material evidence before it to make a fair and just adjudication on the merits.

Costs

24I now turn to the costs claimed by Ms. Galea upon granting leave to the defendant Wal-Mart to introduce the 2010 Grid as admissible evidence.

25The plaintiff, Gail Galea, seeks costs arising from the adjournment of the trial of her action against the defendant, Wal-Mart, on January 27, 2016. She seeks those costs on a substantial indemnity basis in the amount of $65,000.

26In the course of her submissions, Ms. MacDonald took pains to assure the court that she attributed no fault for the late disclosure of the 2010 Grid to Mr. Dye either personally or professionally. I accept that submission.

27Mr. Dye agrees that Wal-Mart should pay whatever disbursements are incurred for the further examination for discovery of Mr. Cheesewright, the representative of the defendant produced for that purpose. These disbursements would include the booking fee, room rental and time at the examiner’s office on January 28, 2016. These disbursements would also cover the cost for the examiner’s office to produce the transcript of evidence given by Mr. Cheesewright on an expedited basis. Mr. Dye also submits that costs incurred by the plaintiff should amount to no more than 18 hours for one lawyer representing the plaintiff, and that those costs should only be awarded on a partial indemnity basis.

28When awarding costs, I must determine the three essential elements of entitlement, scale and quantum. The costs award I make must reflect the notions of fairness and reasonableness embedded in the common law. More to the point, the court held in Boucher et al. v. Public Accountants Council for the Province of Ontario et al., 2004 14579 (ON CA), [2004] 71 O.R. (3d) 291 (Ont. C.A.) that costs awards should reflect what the court views as a fair and reasonable amount that should be paid by an unsuccessful party rather than an exact measure of the actual costs incurred by the successful party. In Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (Ont. C.A.) the court also directed trial courts to consider what an unsuccessful party could reasonably expect to pay as a measure of what would be fair and reasonable.

29I am awarding the costs of the leave motion to the plaintiff despite the fact that the defendant was the successful party on the motion, pursuant to rule 57.01(2). Where a party achieves success in the form of an indulgence granted by the court, costs may be awarded against that party: Fox v. Bourget (1987), 17 C.P.C. (2d) 223, affirmed at 9 W.D.C.P. 142 (Ont. H.C.). I am also awarding the costs of the adjournment and the mid-trial examination for discovery to the plaintiff pursuant to the discretion given to the court by section 131 of the Courts of Justice Act.

30The adjournment arose as a term of my ruling on a motion for leave made by Wal-Mart to introduce the 2010 Grid. The adjournment was granted to overcome the prejudice the plaintiff would suffer from the late disclosure of the 2010 Grid and its introduction as evidence at trial. The time permitted by this adjustment would allow the plaintiff the opportunity to conduct a mid-trial examination for discovery of Mr. Cheesewright on this document.

31I heard submissions from Ms. MacDonald about facts and circumstances applicable under various factors set out under rule 57.01(1) which she submits I should consider when awarding costs. Ms. MacDonald is correct to say that these are the factors for the court to apply when exercising my discretion under section 131 of the Courts of Justice Act. The authority to grant costs and to exercise this discretion is granted to the court by section 131 of the Courts of Justice Act. This discretion is made expressly subject to the provisions of an Act or rules of court. The (Ontario) Rules of Civil Procedure are such rules of court.

32I agree with Ms. MacDonald that several factors set out under Rule 57.01 apply to the facts and circumstances giving rise to the adjournment. The challenge before me is to delineate between the costs relevant to the adjournment, and those that should be left for the court to decide on the greater trial of the action.

33I accept the submissions of Ms. MacDonald on behalf of the plaintiff and Mr. Dye for the defendant that the use of the 2010 Grid as admissible evidence for this trial is of central importance, although I have heard no evidence about it to date. However, this joint submission satisfies me for the purpose of applying subrule 57.01(1)(d).

34The 2010 Grid was produced after the third day of evidence given at this trial. Ms. Galea was still giving her evidence in-chief. I consider this late disclosure as an event that has unduly lengthened this trial because of the day taken for the voir dire to determine whether leave should be granted, and the adjournment of the trial for a full day on January 28, 2016 for Ms. MacDonald to examine Mr. Cheesewright on it. This is a proper factor under subrule 57.01(1)(e) to take into account when setting the costs at this time for the motion and adjournment.

35Ms. MacDonald argues that if Wal-Mart intends to rely upon the 2010 Grid as part of its case, her re-examination of Ms. Galea will take longer than she anticipates and will involve more preparation time. It may also be necessary to call evidence in reply because of the 2010 Grid after hearing evidence called by Wal-Mart.

36Ms. MacDonald argues that the plaintiff has incurred costs to prepare for the argument of the motion for leave the night before, and that the good part of Wednesday, January 27, 2016 was spent on argument before the court. She states that she will incur time to prepare for her further examination for discovery of Mr. Cheesewright pursuant to the terms of my ruling.

37Ms. MacDonald submits that the introduction of the 2010 Grid will require a comprehensive change to the trial strategy of the plaintiff. Restructuring the plaintiff’s trial strategy may require the plaintiff to incur greater expense for counsel to conduct further cross-examination of witnesses at trial than initially anticipated. Ms. MacDonald also states that she will have to re-examine Ms. Galea at some length.

38Ms. MacDonald also states that the introduction of the 2010 Grid will require her to restructure her cross-examination of Mr. Bob Hakeem, the head of Human Relations at Wal-Mart Canada, who she proposes to call at trial and have qualified as an adverse witness, and her cross-examination of Mr. Cheesewright when he is called by the defense. She argues that all of this has caused greater cost to the plaintiff to restructure the plaintiff’s case and to deal with any defense raised by Wal-Mart.

39I am of the view that these arguments do not fit within the factors under rule 57.01(1)(f) or (i) for the costs of the motion and of the adjournment. These arguments may be better left for submissions, if and when applicable, after trial.

40Ms. MacDonald argues that the motion for leave and the resulting adjournment was a vexatious step. She argues that the 2010 Grid should have been listed in Wal-Mart’s affidavit of documents during the discovery process. Ms. MacDonald further argues that the 2010 Grid should have been located and produced to answer question numbers 1136 to 1140 of Mr. Cheesewright’s examination for discovery that took place on July 19, 2012, or the related undertaking that was given. Ms. MacDonald states that the 2010 Grid should have been known to Wal-Mart Canada’s Human Resources department. I understand this submission is made to support a claim for elevated costs.

41I agree that the 2010 Grid should have been disclosed and produced pursuant to Wal-Mart’s obligations under the Rules. However, I am already awarding costs for the adjournment to Ms. Galea. I do not consider this factor to justify an award of those costs at an elevated level unless the legal requirements for an award of greater than partial indemnity costs are also met.

42The scope of discretion for the court to award substantial indemnity costs to a successful defendant was articulated by the Court of Appeal in Davies v. Clarington (Municipality), 2009 ONCA 722 at paragraph 40 as follows:

In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework - as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.

43The Court of Appeal in Toronto Star Newspapers Ltd. v. Fraleigh, 2011 ONCA 555, affirmed the principle in Davies that elevated costs can only be justified in two circumstances: where there is an offer to settle that applies, or where there has been a “clear finding” of reprehensible conduct by the party against whom costs are sought. The requirement to find such conduct before elevated costs are considered can be traced back to the founding of that principle in Young v. Young, 1993 (S.C.C.) and Mortimer v. Cameron, 1993 563 (Ont. C.A.).

44There is no offer to settle here, nor could one have been expected in the circumstances. There is also no clear finding of reprehensible conduct. I could not make a finding of this nature in any event without a way to connect the disparate circumstances of how and when the 2010 Grid was disclosed, and certainly not without having evidence of improper conduct from the trial on which to reach a conclusion.

45I therefore consider it appropriate to award costs to the plaintiff, but only on a partial indemnity basis. However, I reserve the authority under the discretion given to me by section 131 of the Courts of Justice Act to reconsider the scale of the costs I am awarding, in addition to or in the context of any costs I am ultimately asked to award for the overall trial if there is a proper evidentiary basis to do so.

46I understand that Mr. Dye’s request for leave to introduce the 2010 Grid at trial came as a surprise to Ms. MacDonald and to Ms. Yorke. The amount of legal work required of them for the motion and subsequently the further examination for discovery of Mr. Cheesewright was compressed into the timeframe I imposed in order to have the trial resume on Friday morning, January 29, 2016.

47I accept that both counsel representing Ms. Galea incurred numerous hours to research and prepare argument during the evening of January 26, 2016. I also accept that the nature of the motion for leave required both counsel to attend before the court to argue the motion on Wednesday, January 27, 2016, one as advocate and one providing legal support in the course of argument.

48The timing and nature of the further examination for discovery of Mr. Cheesewright also required both counsel to prepare for and to attend at his examination for discovery on Thursday, January 28, 2016. Further time would have also been required after the examination for discovery Mr. Cheesewright on January 28, 2016 to evaluate and to determine the appropriate position for the plaintiff to take in its aftermath. I therefore consider it appropriate to award costs for the time of both Ms. MacDonald and Ms. Yorke, which I estimate to be in the range of 24 hours each spent on the motion and as a result of the adjournment.

49Ms. MacDonald asks me to consider her experience and her hourly rate under subrule 57.01(1)(O.a). I am advised that is Ms. MacDonald is senior counsel at the firm Rudner MacDonald LLP, and that her hourly rate is $550 an hour. Having regard to the definition of partial indemnity, substantial indemnity and full indemnity costs under the rules, I have determined that Ms. MacDonald’s substantial indemnity rate must be less than her full hourly rate of $550 an hour. Even if her substantial indemnity rate was $540 an hour, it must be the product of her partial indemnity rate times 1.5. Therefore, I consider Ms. MacDonald’s partial indemnity rate to be $360 an hour.

50Similarly, I consider Ms. Yorke’s hourly rate as associate counsel representing the plaintiff to be $270 an hour on a substantial indemnity basis, and therefore her partial indemnity rate to be $180 an hour.

51I therefore award the costs of the motion for leave and for the adjournment, including the time to prepare for and to conduct the further examination for discovery of David Cheesewright to the plaintiff Gail Galea on a partial indemnity basis in the amount of $12,960 plus HST, in addition to any invoice rendered by Victory Verbatim for the examination and transcript on January 28, 2016.

52This is a costs order for the motion for leave and for the terms of adjournment only. The costs awarded in this order do not usurp the costs either party may claim for the action or the trial up to and including 4:00 p.m. on January 26, 2016, or the costs either party incurs after the trial resumed on Friday morning, January 29, 2016.