S. Whitmore

In a complex construction delay action regarding the Toronto York Spadina Subway Extension, the plaintiff contractor and defendant transit commission brought cross-motions regarding refusals and undertakings from examinations for discovery.

The court applied the principle of proportionality under Rule 29.2.03 to resolve the remaining disputes.

The court ordered the plaintiff to produce a breakdown of estimated project costs and a sample of 75 Requests for Information, but denied requests for the plaintiff's profit and loss reports and the internal correspondence of its scheduling consultant.

The defendant was ordered to produce the time periods for its liquidated damages claims against contractors at other stations.

The Toronto Transit Commission (TTC) brought a motion for leave to file additional evidence on an upcoming motion regarding litigation privilege over approximately 1,600 documents.

TTC also sought a preliminary ruling on waiver of privilege related to a sealed document.

The court dismissed the motion to file additional evidence, finding it unnecessary, an improper use of an adjournment, and contrary to the rule against case splitting.

The court directed the responding party to inspect the sealed document on a without prejudice basis and adjourned the waiver issue to the return of the main motion.

Following the dismissal of the applicants' application, the respondents sought costs.

One respondent settled their costs claim, while the other, represented by pro bono counsel, sought substantial indemnity costs due to the applicants' conduct.

The court held that pro bono representation does not preclude a costs award and that ordinary costs rules apply.

The court found the applicants' conduct expanded the litigation but did not rise to the level of reprehensible conduct required for substantial indemnity.

The court awarded partial indemnity costs to the pro bono respondent in the amount of $84,836.79.