Executive Summary: Key Legal and Evidentiary Issues

• Defendants sought to compel the plaintiff to answer outstanding undertakings and certain refusals from examination for discovery.

• The motion was based on the discovery obligations under Ontario’s Rules of Civil Procedure.

• The court assessed proportionality, reasonableness, and fairness in determining costs.

• Success was evaluated by issue count, with defendants succeeding on the majority (9 of 11).

• Plaintiff's argument that success was mixed and that costs should be in the cause was rejected.

• Partial indemnity costs were awarded based on standard rates and the defendants’ litigation conduct.

Facts and procedural background

Joshua Russell Dyke, along with Ann Catherine Dyke and James Vernon Dyke, brought an action involving multiple defendants, including The Bombshelter Pub, the University of Waterloo, and various individuals and university-affiliated entities. During the discovery phase of the proceedings, certain questions and document requests made during Joshua Dyke’s examination for discovery were left unanswered or refused. As a result, several defendants—specifically The Bombshelter Pub, the University of Waterloo Federation of Students, Laura Franco-Valencia, and Rachel Vesz—brought a motion seeking to compel Dyke to provide responses to these outstanding matters.

The motion focused on compelling answers to undertakings and certain refusals, a procedural matter governed by Ontario's Rules of Civil Procedure. The motion was argued and decided before Justice MacNeil of the Ontario Superior Court of Justice.

Legal analysis and cost determination

The court noted that under section 131(1) of the Courts of Justice Act, awarding costs lies within the court’s discretion. Rule 57.01 of the Rules of Civil Procedure sets out the factors for consideration, including the result, complexity, conduct of the parties, and proportionality. The court reaffirmed that costs are typically awarded to the successful party on a motion, and emphasized the importance of proportionality and reasonableness, as stated in appellate guidance including Boucher v. Public Accountants Council (Ontario).

In determining success, the court found that the defendants had succeeded on 9 out of 11 issues, an 82% success rate. Although the plaintiff argued that success was mixed and requested either no costs or costs in the cause, the court rejected both propositions. Justice MacNeil held that the outcome was substantially favorable to the defendants, the materials they submitted were more comprehensive, and the costs requested were reasonable in light of the complexity and volume of the work involved.

Outcome and disposition

The court ordered the plaintiff, Joshua Dyke, to pay partial indemnity costs in the amount of $4,302.13 to the defendants/moving parties. This amount was inclusive of HST and disbursements and was to be paid within 30 days of the release of the decision. The court emphasized that the amount was fair, reasonable, and proportionate, taking into account all relevant factors under Rule 57.01.