Costs on a Summary Judgment Motion

In Mo v. Johnson, the defendant successfully moved for summary judgment dismissing the plaintiff's claim.  Justice Morgan's decision on costs is reported at 2012 ONSC 6307 (CanLii). 

One of the arguments made by the plaintiff was that the defendant was only entitled to costs of the motion, not the entire action.  Justice Morgan disagreed, holding that:

[24]      I agree with Mr. Bizezinski that where summary judgment dismisses the action, it is the costs of the action in its entirety that are at issue. To hold otherwise would allow a party who brings spurious litigation to cause the opposing side to incur substantial costs with no means of compensation. 

The defendant was awarded costs of the entire action on a substantial indemnity basis due to the plaintiff's conduct, which was described as "aggressive and high-handed".  The decision is a nice synopsis of some of the basic principles relating to costs. 

Cost of Productions

Who pays for the cost of producing documents?

In Veillette v. Piazza Family Trust, 2012 ONSC 4782 (S.C.J.), the plaintiffs brought a motion to compel the defendant to answer undertakings and refusals he gave on an examination in aid of execution.  The defendant took the position that the plaintiffs must pay any charges for obtaining the documents.

The Court cited two cases dealing with production of documents before trial, Ho v. O’Young-Lui, 2002 CanLII 6346 (ON SC), and Traverse v. Turnbull, [1996] N.S.J. No. 212 N.S.C.A. which held that the general rule is the party in possession or control of the documents is to produce them at their expense, although the court has residual discretion to depart from that rule where fairness and justice so require.  The general rule may be altered if its application would prevent a party from presenting its case.  Justice Kane held that there was no reason to depart from the general rule.

Although this case deals with an examination in aid of execution, disagreement over who pays for documents can often arise in the context of examination for discovery.  The Veillette case is useful in providing a succinct argument as to why plaintiffs should bear the cost of producing their documents.

Martin v. Fleming - Deductibles

The Court of Appeal has now released its decision in Martin v. Fleming, which can be found at the following link: Martin v. Fleming, 2012 ONCA 750 (C.A.)

At issue was the operation of the deductible where a plaintiff has been in multiple accidents.  The motions judge ruled that where the plaintiff has been involved in two accidents and the actions are tried together, there is a deductible for each action.

In a brief endorsement, the Court of Appeal dismissed the appeal. They followed the motion judge's reasoning that s. 267.5(7) is unambiguous and the plaintiff is subject to two deductibles.

Although this is a brief endorsement, it is important to those defending claims where the plaintiff has been in multiple accidents.  Insurers for each defendant retain the benefit of the deductible.

Expert Independence

Do the new rules pertaining to expert evidence impose a higher duty than at common law?  When an expert is alleged to be biased due to a connection to one of the parties or a matter in issue, does it go to admissibility or weight? 

In Henderson v. Risi, 2012 ONSC 3459 (S.C.J.), the defendant proffered an expert, Mozessohn, to give testimony at trial regarding irregularities in the financial records of Timeless Inc., provide an opinion on the value of shares in Timeless held by the plaintiff, and critique the plaintiff expert's opinion.  The plaintiff objected to the admissibility of Mozessohn's evidence on the basis that he was not independent or impartial since he was a partner in the accounting firm that acted as Timeless' Trustee in Bankruptcy.  Mozessohn testified that there had been no communication between members of his firm about the case.

Justice Lederman quoted the Newfoundland Court of Appeal in Gallant v. Brake-Patten 2012 NLCA 23 (CanLII), which summed up the law regarding the admissibility of expert evidence where the allegation is the expert lacks institutional independence as opposed to personal advocacy:

In summary, in civil cases, if expert evidence meets the Mohan criteria for admissibility, it is admissible.  Bias or partiality in expert evidence which is based on the expert having a connection with a party or issue or a possible pre-disposition or approach in the case is a reliability issue which is best determined when the whole of the expert evidence is considered in the context of all of the trial evidence.  As such, the issue is one of weight and not admissibility.

Plaintiff's counsel argued that the new r. 4.1 and the changes to r. 53 imposed a higher level on duty on an expert in Ontario, and that the question of institutional independence must be determined at the admissibility stage rather than leaving it to be considered as a matter of weight.

Justice Lederman disagreed and allowed the expert to give testimony.  Rules 4.1 and 53 simply remind experts of their already existing obligations to provide opinion evidence that is fair, objective and non-partisan.  Any lack of institutional independence went to weight rather than admissibility.  The new rules impose no higher duties than already existed at common law.