What are the costs of a motion brought by Orca Bay defendants to compel a plaintiff to submit to two neuropsychological assessments?

A number of motions were decided on January 4th. Although the motion brought by the defendant Bertuzzi on his own behalf and on behalf of the Orca Bay defendants to compel the plaintiff to submit to two neuropsychological assessments, including two clinical interviews, one on behalf of each defendant, was successful, I would not award costs of that motion to the defendants. Given that the defendants breached their duty to disclose the settlement agreement and to advise the court that there was no longer adversity between the defendants on liability and given that two neuropsychological assessments would never have been ordered on January 4th had I known the true state of adversity among the defendants, the plaintiffs are entitled to the costs of that motion. The plaintiffs would have been successful on the motion had the defendants revealed the true state of adversity [3] (the rationale for which is set out in my reasons of June 28, 2012). I would go farther and say that the plaintiffs should have their costs of that part of the motion on a substantial indemnity scale. Although the defendants’ conduct could not be described as reprehensible or outrageous, elevated costs for the very motion obtained due to the defendants’ breach of their disclosure obligations is called for as part of the “consequences of the most serious nature” as stated by the court of appeal in Aecon v. Brampton. Notwithstanding that the defendants did not intend to mislead, as the court of appeal stated in Aecon, the legal obligation of immediate disclosure is clear and unequivocal. For the defendants to have stated on January 4th that the existence of an agreement was “mere speculation” was in my view a serious breach of the defendants’ obligation of “immediate” disclosure and it resulted in a miscarriage of justice in the awarding of two neuropsychological assessments (a matter corrected in my decision of June 28, 2012.)