Executive Summary: Key Legal and Evidentiary Issues

• Concerns a wrongful dismissal claim where the employer alleges just cause for termination based on alleged toilet paper theft, while the employee asserts he was fired for raising workplace concerns.
• Involves discovery practice, specifically disputes over undertakings, refusals, and whether a court motion was needed to obtain complete answers from the employer’s representative.
• Raises procedural questions about when a motion is considered the catalyst for compliance and whether costs should be awarded after the substantive discovery issues have effectively been resolved.
• Engages the court’s discretion on costs under the Courts of Justice Act and Rule 57, including proportionality, fairness and the principle that costs are incidental to decisions on the parties’ rights rather than disputes in their own right.
• Highlights the impact of rigid, adversarial correspondence between counsel on the court’s willingness to award costs where a discovery dispute is settled except for costs.
• Illustrates that in the absence of exceptional circumstances, courts are reluctant to award costs where a motion has effectively been settled on the merits and only the question of costs remains.

Background and nature of the dispute
The underlying action is a wrongful dismissal claim brought by Peter Robinson against his former employer, Richardson International Limited. Mr. Robinson alleges that his employment was terminated without notice or pay in lieu, and that the real reason for his dismissal was retaliation for raising concerns about the workplace environment. The employer takes the position that Mr. Robinson was dismissed for cause, alleging he participated in the theft of a case of toilet paper. This endorsement does not decide the merits of the wrongful dismissal claim; instead, it addresses a procedural skirmish concerning discovery undertakings and the allocation of costs on a motion.

Earlier discovery dispute and representative for examination
At an earlier stage, the parties could not agree on who would act as Richardson International’s corporate representative for discovery. Mr. Robinson sought to examine Mr. Getty, while the employer insisted that Mr. Murphy should be the representative. That issue was argued before Justice Doi on July 24, 2024. Justice Doi held that the defendant had displaced the plaintiff’s prima facie right to select the discovery witness and ordered that Mr. Murphy, rather than Mr. Getty, be the corporate representative. In connection with that ruling, Justice Doi ordered costs payable to the defendant in the amount of $3,800 inclusive. This earlier order forms part of the procedural history but is separate from the costs motion determined in the current endorsement.

Discovery process and undertakings dispute
Examinations for discovery took place on February 4, 2025. Richardson International’s representative gave four undertakings and took forty-four questions under advisement. The defendant later delivered an undertakings chart on May 12, 2025, in which most questions taken under advisement were marked as refused. The plaintiff answered his own undertakings by June 3, 2025, and at the same time complained that the defendant’s answers were unsatisfactory, setting a deadline and warning that a motion would be brought if more fulsome responses were not provided. After follow-up emails and a lack of timely response, the plaintiff served a motion record on August 5, 2025, seeking to compel answers to undertakings and refusals. Throughout August and into the fall of 2025, defense counsel provided updated undertakings charts and supplemental answers. While many refusals were eventually changed to answers, several were initially maintained, prompting further debate over whether a long or short motion was still required. By November 10, 2025, the defendant had provided further answers, and by November 13, 2025, plaintiff’s counsel acknowledged that the discovery issues were largely resolved, although she maintained that the plaintiff should still receive costs of the motion.

Positions of the parties on the costs motion
By the time the matter reached the court before Associate Justice Glick, the only live issue was costs. The substantive relief originally sought—to compel answers to undertakings and questions under advisement—had effectively been achieved through the exchange of updated charts and supplemental answers. The plaintiff argued that the motion had been necessary to obtain those answers, emphasizing the defendant’s slow responses and resistance, and therefore claimed that costs should be awarded notwithstanding that the merits of the motion were no longer in dispute. In support, the plaintiff relied on authorities in which courts had awarded costs on undertakings and refusals motions even where some issues were resolved before argument, particularly where the motion was viewed as the catalyst for compliance. The defendant countered that the motion was unnecessary and that the answers were provided independently of the motion process. It stressed that its undertakings were answered a month before the plaintiff’s own undertakings were completed, and that it had continually worked to address concerns raised by the plaintiff once they were clarified. The defendant characterized the plaintiff’s approach as rigid and adversarial and asserted that, if costs were to be considered at all, they should either be denied entirely or awarded in the defendant’s favour.

Court’s analysis on costs
Associate Justice Glick began by noting that costs of a proceeding or a step in a proceeding are in the discretion of the court, guided by section 131(1) of the Courts of Justice Act and the factors in Rule 57.01, including the result, offers to settle, and overarching principles of fairness, reasonableness and proportionality. The court then referred to leading authorities emphasizing that costs are generally an incident of a decision on the parties’ substantive rights and should not themselves become the central subject of litigation. In particular, prior decisions have held that costs typically should not be awarded where a motion is settled “except for costs,” absent exceptional circumstances. The rationale is that, once the substantive dispute is resolved, it is difficult and often unfair for the court to reconstruct hypothetically how the motion might have been decided, whether a party’s position was reasonable at each stage, or whether the motion truly was the catalyst for compliance. Applying these principles to the facts, the court found that this was not an appropriate case for a costs order. It held that the defendant’s answers to undertakings had been provided a month before the plaintiff fulfilled his own undertakings, so the motion was not required to compel those responses. As for the refusals that later became answers, the court concluded that the defendant had indicated a willingness to work with the plaintiff to resolve the issues even before the motion record was served. While the court acknowledged that the defendant could have been more prompt in its correspondence, it determined that any delay did not make the motion necessary. Further, even if the motion had initially prompted movement, the court found that by the end of August 2025 it should have been clear that a full contested motion would not be needed. The defendant was providing answers and attempting to resolve the remaining disputes, yet the plaintiff continued to press forward with the motion infrastructure. The court also emphasized the tone and content of the correspondence between counsel—which it described as rigid and adversarial—as a factor weighing against any award of costs. In the court’s view, that approach contributed to the escalation of a largely resolved discovery dispute into a stand-alone fight over costs, something the authorities caution against.

Outcome and monetary consequences
In the result, Associate Justice Glick exercised his discretion to order that each party bear its own costs of the motion. The court rejected the plaintiff’s request for a costs award and declined to award costs to the defendant, concluding that an order in favour of either side would not be appropriate given that the motion was not necessary to obtain the answers and had effectively been resolved before the hearing. This endorsement therefore does not decide the underlying wrongful dismissal claim and does not award any damages or other monetary relief on the merits of the employment dispute, which remain to be determined in separate proceedings. The only quantified monetary order referenced in the procedural history is the earlier $3,800 inclusive costs award made by Justice Doi in favour of the defendant on the discovery-representative motion; in the present costs motion before Associate Justice Glick, there is no successful party in the traditional sense and no additional monetary amount is ordered, so the total further award in favour of any party in this decision is zero, and no overall damages or costs total for the wrongful dismissal case as a whole can yet be determined.