COURT FILE NO.: 54216/13 DATE: 2017/05/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marineland of Canada Inc. Andrew Burns, for the Plaintiff/Defendant by Counterclaim Plaintiff/Defendant by Counterclaim

• and -

Phillip Demers Krista Bulmer, for the Defendant/Plaintiff by Counterclaim Defendant/Plaintiff by Counterclaim

The Honourable Justice J. R. Henderson

COSTS ENDORSEMENT

[1] Multiple motions from both parties were heard together on April 7, 2017, resulting in my written decision dated April 10, 2017. In my decision, rather than deal with each individual motion, amended motion, and cross-motion, I divided my analysis into two broad categories, namely which person should be produced as a representative of Marineland for examinations for discovery and on what terms, and whether either or both parties should be required to deliver a further and better affidavit of documents.

[2] Regarding the first category, Demers initially brought a motion, returnable February 4, 2016, for an order to compel John Holer (“Holer”) to be produced as Marineland’s representative. The production of Holer was strongly contested by Marineland as evidenced by Marineland’s motion for a substitute representative returnable April 28, 2016.

[3] Marineland resisted completely the production of Holer for approximately 12 months. During that period various amended motions and cross-motions were exchanged and cross-examinations were conducted. Marineland insisted that Holer was in such poor health that he was incapable of acting as Marineland’s representative.

[4] Demers submits that Demers was successful on this part of the proceeding as I ordered that Holer was to be produced as Marineland’s representative. However, I find that Demers was not entirely successful as I ordered that Holer was to be produced on specific terms that allowed for his health problems. I also ordered that Carmen Grimaldi was to be an alternate for Holer if Holer was unable to continue, contrary to the position put forward by Demers.

[5] Marineland submits that Marineland was in fact more successful on this part of the proceeding because on March 22, 2017, Marineland offered to settle these motions on terms that resembled the terms that I imposed in my order, plus pay some of Demers’ costs to that point.

[6] However, Marineland’s offer came after Marineland had, for 12 months, taken the position that Holer could not be produced at all because of his health problems, yet Marineland had failed to deliver a medical report that supported its position. It is apparent that Marineland had a medical opinion as to Holer’s health, but that Marineland was unwilling to file written evidence of that opinion with the court, except on certain terms.

[7] Eventually, on March 6, 2017, Marineland delivered a medical report regarding Holer’s health, and then approximately 16 days later changed its position from refusing to produce Holer to offering to produce Holer on terms. Demers’ response was to engage in an unnecessary cross-examination of Holer’s doctor.

[8] In summary, Marineland could have delivered a medical report in 2016 and offered to produce Holer on terms at that time, but chose not to do so. Demers could have agreed to Marineland’s revised position in late March 2017, and avoided oral argument on these motions, but chose not to do so.

[9] In my view, neither party was entirely successful with respect to the motions regarding the production of a representative for Marineland. Given the conduct of the parties, in my view, neither party should receive the benefit of a costs award on this part of the proceeding.

[10] Regarding the production of documents, Demers’ motion for an order that Marineland produce a further and better affidavit of documents was not successful. I found that Demers’ request for documents was too extensive and vague to form the basis for an order at this time.

[11] However, one of the other reasons for my decision to decline to make the order at this time was that Marineland has not yet particularized its claim. Accordingly, I ordered that Marineland particularize its claim with supporting documentation on or before August 1, 2017. I then dismissed Demers’ motion without prejudice to Demers bringing another motion at a later date.

[12] In my view, Marineland should not receive the benefit of a costs award because Marineland delayed in particularizing its claim, thereby contributing to the reasons for the dismissal of Demers’ request. I accept that Demers’ motion may have been premature and vague, but it also resulted in a procedural order that advanced the case.

[13] Therefore, there should be no costs to either party on Demers’ motion requesting that Marineland produce a further and better affidavit of documents.

[14] Regarding Marineland’s motion for Demers to produce a further and better affidavit of documents, I find that this motion was originally returnable on December 17, 2015, and resulted in two cross-examinations of Demers. The net result was that Demers disclosed an additional 836 documents. By the time the motion was argued, Demers, through counsel, had agreed to provide a further and better affidavit of documents with a detailed Schedule B. In my view, this motion was vigorously resisted by Demers initially, but consumed only a small amount of court time when all matters were heard together.

[15] Given the lengthy history of Marineland’s motion for Demers to produce documents, I find that there should be some costs to Marineland as Marineland was put to unnecessary expense to obtain disclosure of many relevant documents.

[16] In assessing the quantum of costs I will also take into account the fact that I agreed with the position taken by Demers that Demers was not required to produce hard copies of any electronic record that he had created and posted to certain websites. However, I find that this aspect of the motion arose late in the proceeding and involved only a small amount of court time.

[17] In consideration of all of these factors, I fix costs on a partial indemnity scale of Marineland’s motion for Demers to produce a further and better affidavit of documents at $3,500 all-inclusive.

[18] In summary, with respect to all matters that were heard on April 7, 2017, I order that Demers pay to Marineland partial indemnity costs fixed at $3,500 all inclusive, payable within 60 days.

J. R. Henderson J.

Released: May 24, 2017