Excessive Demand for Particulars and Improper Conduct by Counsel Can Be Grounds for Elevated Costs

In the recent case of Certified Equipment Sales v. Iuorio, 2024 ONSC 2948, Justice Verner addressed a motion for particulars related to the Defendant/Responding Party’s (“responding party”) Statement of Defence and Counterclaim. The decision highlights the importance of appropriate demands for particulars and the consequences of improper conduct during legal proceedings.

Background

The responding party was an employee of the moving party until 2016. The moving party brought an initial action against the responding party, claiming that she failed to repay a loan. In response, the responding party filed a Statement of Defence and Counterclaim, in which she claimed, among others, sexual harassment and violations of her rights under the Ontario Human Rights Code.

On August 1, 2023, the moving party demanded particulars with respect to 35 different paragraphs, totaling 120 issues. The moving party argued that if the responding party could not provide the requested particulars, her claim should be struck from the pleadings. The responding party maintained that she had no further particulars to give and that many of the particulars requested were excessive or within the knowledge of the moving party.

Analysis

The moving party relied on 3 Dogs Daycare Inc. v. Dogtopia Enterprises Canada Inc., 2021 ONSC 514 for guidance on the required level of detail in particulars. In that case, Master McGraw noted that while clarification on timing and other details might be necessary, demanding a granular level of detail often equates to seeking evidence, which is not required at the pleading stage.

Applying this precedent, Justice Verner concluded that the moving party was demanding an unreasonable level of specificity. For instance, the moving party sought extensive details on how, when, and where GPS monitoring devices were allegedly used to monitor the responding party’s off-duty conduct. The court found these demands unnecessary, noting that any further particulars would be considered evidence, which is not required in pleadings.

In another example, despite the responding party providing specifics about assurances from the moving party that she did not need to repay a loan, the moving party insisted on additional details. The court observed that such demands could lead to an endless cycle of requests for particulars.

Justice Verner emphasized that pleadings should be evaluated as a whole rather than dissected sentence by sentence. She found that the responding party’s pleadings were detailed enough for the moving party to respond, including specific allegations of sexual harassment. As a result, the court dismissed the motion for further particulars, deeming them unnecessary for the pleadings and better suited for the discovery process.

Costs Awarded on an Elevated Basis

The moving party also sought costs on a substantial indemnity basis, alleging that the cross-examination by the responding party’s counsel was abusive and beyond the permissible scope. The moving party’s counsel claimed frequent interruptions were necessary due to the inappropriate nature of the questions.

However, the court found that many interruptions by the moving party’s counsel were unnecessary and obstructive. Questions about the moving party’s motives were deemed appropriate given the case’s context. Only a minor portion of the questions (5 out of 563 questions) were considered inappropriate, which did not justify sanctions.

Ultimately, the court ruled that the moving party’s allegations of impropriety against the responding party’s counsel were unfounded. Instead, due to the improper conduct of the moving party’s counsel, the court awarded costs on an elevated basis to the responding party.

This case underscores the importance of reasonable demands for particulars and appropriate conduct during legal proceedings, highlighting that excessive demands and obstructive behaviour can lead to elevated costs being awarded against the offending party.

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