Vanessa Yvonne Voakes

Following a successful motion, the defendants sought costs on a partial indemnity basis.

The plaintiff objected to several items in the defendants’ costs outline, including recovery of costs for cross-examining the plaintiff’s affiant, the attendance of two defence lawyers at a cross-examination in London, and recovery of business class airfare.

The court held that the cross-examination was reasonable and materially relied upon in the reasons for judgment, and that it was reasonable for two lawyers to attend given the complexity and stakes of the litigation involving a foreign government.

However, applying principles of proportionality and fairness in costs awards, the court found that business class airfare should not be imposed on the opposing party and reduced the disbursement to the equivalent of economy travel.

Costs were awarded accordingly.

In a civil action alleging negligent investment advice and related wrongs, the moving defendants sought directions under Rule 34.14 of the Rules of Civil Procedure following an adjourned examination for discovery of the plaintiff.

They argued that the examination had been improperly interrupted by excessive objections and instructions not to answer by opposing counsel.

After reviewing the transcript, the court found that although a number of objections had been raised, they did not amount to an abuse of the discovery process.

While the court criticized two instances of uncivil and sarcastic conduct by counsel during the examination, it concluded the examination had not been rendered futile and could continue rather than being restarted.

Costs were awarded to the moving defendants on a partial indemnity basis.

The plaintiff sought leave to appeal to the Divisional Court from a costs order awarding substantial indemnity costs against it after its unsuccessful motion for summary judgment.

The underlying motion involved a dispute over an alleged energy supply contract and claims of overcharging, where the plaintiff’s affidavit evidence conflicted with recorded telephone evidence and cross-examination testimony.

The motions judge had found the plaintiff acted unreasonably by bringing the summary judgment motion prematurely and by advancing misleading and contradictory affidavit evidence, warranting substantial indemnity costs under Rules 20.06 and 57.01 of the Rules of Civil Procedure.

On the leave motion, the court held the plaintiff failed to meet the criteria in Rule 62.02(4) because there was no conflicting authority and no reason to doubt the correctness of the costs ruling.

Leave to appeal the costs order was therefore refused.

The defendants brought a Rule 21 motion to strike an amended statement of claim on the basis that it disclosed no reasonable cause of action and was an abuse of process due to a related proceeding.

The court applied the stringent Rule 21 test and held that most of the pleaded causes of action—including breach of an implied contractual duty of good faith, inducement of breach of duty, inducement of breach of fiduciary duty, and intentional interference with economic relations—were not plainly doomed to fail and therefore should proceed.

However, the conspiracy claim failed to properly plead the necessary elements and was struck with leave to amend.

The request to stay the proceeding due to a separate action involving a solicitor and law firm was rejected because the parties and subject matter were not the same.

Costs were awarded to the responding parties.