The Action involved a claim for damages arising from the construction of an apartment building. In a previous Application, the Plaintiffs sought further and better record production from the Defendants and an imposition of penalties for late and improper disclosure. On that Application, Justice Marion imposed a $7,500 penalty against one of the defendants, Cormode & Dickson Construction Edmonton Ltd (“Cormode”), pursuant to Rule 10.49. However, Marion J. also had concerns regarding the Plaintiffs’ lack of compliance with the Rules in respect of the Cormode discovery, writing that “had these parties engaged in reasonable discovery planning and consultation, it is quite likely a significant portion of the Application would not have been required”. As a result of his concerns, Justice Marion asked the Plaintiffs and Cormode to provide written submissions as to whether a Rule 10.49 penalty should be imposed on the Plaintiffs. This was the subject matter of this Decision.

Justice Marion found that a penalty against the Plaintiffs would not be required or appropriate in this case, for the following reasons:

• The Plaintiffs did not breach their own records disclosure and production obligations, rather they reasonably used their in-house e-discovery team (which was encouraged by the Court);
• While early consultation and discovery planning with Cormode would have saved time and expense, there is “not an express rule in the Rules requiring parties to engage and consult early about records production”;
• The Plaintiffs responded immediately when the deficiencies in Cormode’s production became apparent;
• It had already been found in the underlying decision that the Plaintiffs should materially share the costs to implement the Plaintiffs request to require Cormode to fix its deficient production (therefore, no additional costs were needed);
• Other defendant parties did not engage with Cormode either, making it less appropriate to penalize the Plaintiffs in isolation;
• On balance, the Plaintiffs did not sufficiently interfere with the administration of justice to warrant a penalty.

As a result, no penalty was levied against the Plaintiffs.