jones j

5.12: Penalty for not serving affidavit of records
7.3: Summary Judgment (Application and decision)
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff, after a bidding dispute, sought a constructive trust over an engineering project and lands associated with the project. The Defendants applied for Summary Dismissal of the Action and the Plaintiff cross-applied for Costs on the basis that four of the Defendants filed their Affidavits of Records late, and for thrown away Costs for time spent reviewing documents that were inadvertently disclosed by one of the Defendants.

Jones J. noted that a number of issues in the Parties’ Applications had been resolved in separate proceedings in which the Court held that the Plaintiff did not have an interest in the lands. On the basis of that Decision, Jones J. dismissed the Plaintiff’s claims relating to lands and for knowing receipt of trust property. His Lordship considered whether the Plaintiff’s claims for breach of confidence and unjust enrichment should also be summarily dismissed. Jones J. noted that the Court may grant Summary Dismissal if there is no genuine issue requiring a Trial, and if the Court is able to make necessary factual findings and apply the law to those facts justly and fairly. Similarly, Summary Dismissal is appropriate where the facts and law are uncontroverted, and where it is very unlikely that the Plaintiff could succeed. Justice Jones held that key elements of both the breach of confidence and unjust enrichment claims had not been established, and dismissed the claims.

Jones J. considered the Plaintiff’s Application for double Costs on Column 5, because some of the Defendants’ Affidavits of Records had been served days late. Jones J. noted that Rule 5.12, which allows the Court to impose a penalty for Affidavits of Records that are served late, is “less punitive” than the former Rule 190 which reflected “a shift away from the mandatory language of double costs to a more permissive, discretionary determination with respect to costs”. The Plaintiff sought Costs under Column 5 but Jones J. held that the Plaintiff’s Claim did not specify a dollar amount; instead, it claimed for “constructive trust, accounting for profits, or damages”. As such, the Court awarded double Costs as set out in Column 1 of Schedule C, totalling $1,000.

In respect of the Plaintiff’s Application for “thrown away costs” of more than $25,000, comprising 110 hours spent reviewing documents inadvertently disclosed to his Counsel, Justice Jones accepted that additional work was performed as a result of the Defendants’ error, but did not agree that 110 hours were spent. The Court awarded Costs of $10,000.

View CanLII Details