Executive Summary: Key Legal and Evidentiary Issues

• Late-stage amendment to add a new head of damages for physical pain and health impacts fundamentally expanded the scope of discovery and medical disclosure.
• Interpretation of earlier pleadings raised whether the original claim for “pain and suffering” encompassed physical injury or only mental distress, affecting the defendant’s prior discovery obligations.
• Extensive additional costs were justified for reviewing historical medical records, re-examining the plaintiff, and potentially consulting experts on causation and mitigation of health-related damages.
• Repeated filing of affidavits containing voluminous inadmissible, argumentative, and repetitive material led to large portions being struck and to substantial adverse costs against the self-represented plaintiff.
• Misuse of generative AI without proper verification resulted in non-existent or mischaracterized case citations, increasing the defendant’s legal burden and prompting higher costs on the second motion to strike.
• Competing motions to strike affidavit evidence highlighted the court’s willingness to sanction litigation misconduct through elevated costs while still recognizing limited, targeted successes by the plaintiff.

Background and facts of the dispute

This case arises from a dispute between the plaintiff, Marie Mazac, and the defendant, Gordon H. Muise, relating to alleged misrepresentations in a Property Disclosure Statement provided in the context of a residential real estate transaction. The plaintiff claims that she relied on statements made by the defendant about the condition of the property and later discovered hazardous living conditions, including mold and flooding. As a result, she alleges a range of harms, both emotional and physical, and seeks damages for mental distress and “pain and suffering” said to have flowed from that reliance. Over the life of the litigation, the claim evolved procedurally. Early pleadings referenced damages for mental distress and “pain and suffering” but did not specifically allege that the defendant’s misrepresentations caused any physical pain or medical condition. The defendant, reading the pleadings in that form, treated “pain and suffering” as standard language connected to mental distress, particularly given that the plaintiff was self-represented and had not linked that phrase to any identified physical injury. No medical records had been produced, and the defendant could not reasonably be expected to explore undisclosed physical pain or health conditions at the initial discovery stage.

Motion to amend the statement of claim and expansion of damages

As the proceeding progressed, Ms. Mazac brought a motion, long after the defence had been filed and examinations for discovery had taken place, seeking permission to file a second amended statement of claim. The key feature of this amendment was the express addition of allegations that reliance on the defendant’s misrepresentations caused her specific physical injuries and health issues. She now claimed that exposure to mold and flooding in the property caused physical strain, chronic back pain, exacerbation of osteoarthritis, and other adverse health effects, and she sought damages for those particular physical and health-related consequences. The plaintiff characterized these changes as clarifying or adding factual detail in support of her existing general damages claim, arguing that she was not introducing a new cause of action. She said she intended only to rely on medical records as background support for her own testimony and did not plan to call expert evidence on medical causation. On that view, any additional discovery and document review contemplated by the defendant was, in her submission, overstated and disproportionate. By contrast, the defendant argued that, although the legal cause of action remained one of misrepresentation (fraudulent or negligent), the amendments did introduce a new head of damages—physical pain and medical consequences—that had not previously been alleged. This new damages claim would, in his view, require extensive disclosure and analysis of the plaintiff’s medical history, including production of records dating back several years, assessment of pre-existing conditions and their progression, and fresh discovery focused on causation and mitigation issues.

Court’s assessment of the new damages and discovery consequences

The court accepted that no new cause of action had been pleaded, but found that the amendments clearly added a new and significant head of damages. That new head of damages implicated complex questions of both causation and mitigation. It was not reasonable to assume that earlier generic references to “pain and suffering” would have alerted the defendant to physical injury allegations, particularly when the pleadings never linked those terms to physical pain and the plaintiff had refused to disclose any medical records. In that context, the original discovery process was understandably confined to the mental distress claim as pleaded. Once physical injury and health impacts were explicitly alleged, the court concluded that proper preparation would now require the defendant to obtain and review all relevant medical records back to at least 2016, to explore both pre-existing conditions and their subsequent development. The judge considered the defendant’s estimate of the work required: multiple days of document review and preparation, a further day of re-discovery of the plaintiff, and travel between Halifax and Yarmouth given her insistence on in-person discovery. While the court slightly reduced the estimated lawyer time from 61.5 hours to 50 hours, it accepted that, at the applicable hourly rate and including HST and travel/accommodation, the anticipated additional expense of approximately $20,000 was reasonable. The judge also noted that despite the plaintiff’s statement that she would not call expert evidence, it was difficult to see how she could prove that the defendant’s misrepresentation caused her claimed physical pain and health conditions without expert medical opinion. The likelihood that the defendant would need at least to consult an expert further supported the scale of the projected costs. Drawing on prior authorities that had imposed costs or required parties who introduced new allegations late in the litigation to fund the opposing party’s added expert or discovery costs, the court held that a substantial additional costs order was justified.

Conditional costs order linked to continuation of health-related damage claims

A notable feature of the decision is the way the court structured the $20,000 costs consequence around the plaintiff’s own strategic choice about whether to persist with the new health-related damages. The plaintiff had previously obtained permission to defer disclosure of her medical records until the court determined what costs, if any, would be associated with maintaining those claims. She had indicated that she might discontinue some or all of the medically-based damages rather than bear a high adverse costs risk. Responding to that position, the court ordered that if Ms. Mazac chooses to maintain the damage claims that depend on her medical records, she must pay $20,000 in costs as a condition of doing so, with payment to be made no later than six weeks before any scheduled re-discovery date. Conversely, if she discontinues the damage claims to which the medical records relate, she will not be required to pay that $20,000. In this way, the court attempted to strike a balance between fairness to the defendant—who would otherwise be saddled with substantial unforeseen expense—and proportionality toward a self-represented plaintiff, by giving her an informed choice about whether to pursue this expanded dimension of her case.

First motion to strike the plaintiff’s affidavit evidence (July 2025)

Alongside the amendment motion, the case involved extensive affidavit practice, much of it problematic. The defendant brought a motion to strike portions of six affidavits filed by the plaintiff in connection with competing summary judgment proceedings. Those affidavits contained over 100 paragraphs, many of them improper because they were argumentative, repetitious, or otherwise inadmissible, as well as 17 offending exhibits. One entire affidavit was struck. The plaintiff argued that, as a self-represented litigant, she had done her best to comply with evidentiary rules; she said she did not intentionally misuse the process and suggested that the defendant should have alerted her much earlier to the problems with her affidavits instead of waiting until she had filed several of them. The court rejected the notion that the defendant was at fault for not raising objections sooner. It was reasonable, the judge held, for the defendant to wait until the summary judgment motion was concretely in play before undertaking a detailed review of the voluminous materials. The plaintiff had abandoned her own summary judgment motion and the defendant brought the strike motion in advance of the reciprocal motions’ hearing. The judge emphasized that each party bears the onus of ensuring that their own evidence is proper and admissible, and that this obligation does not fall away because a party is self-represented. In the court’s view, the scope of improper material and the time spent in oral argument—where the plaintiff read at length from affidavits and offered repetitive submissions with limited expansion on her written materials—demonstrated both inadequate preparation and litigation conduct that forced the defendant to incur unnecessary costs. While recognizing that the plaintiff did not appear to be acting with the malicious intent seen in some previous cases of litigation misconduct, the judge still considered that the combination of Civil Procedure Rules 77.09 and 39.04(5) supported a costs order representing a “substantial contribution” toward the defendant’s actual legal expenses. Given time sheets showing roughly $10,000 in fees on this motion alone, the court fixed costs at $6,000, amounting to 60% of the defendant’s reasonable legal costs for the first motion to strike.

Second motion to strike the plaintiff’s affidavit evidence and the use of AI (September 2025)

A second motion to strike, heard in September 2025, arose after the plaintiff filed further affidavits and written submissions. Despite having already received judicial guidance on how to prepare affidavits and being cautioned to consult legal resources or a lawyer if needed, she submitted additional affidavits containing much of the same type of inadmissible and argumentative content. What distinguished this motion was the plaintiff’s use of a generative artificial intelligence application to prepare her brief opposing the defendant’s strike motion. Nova Scotia’s courts had issued a public notice—“Ensuring the Integrity of Court Submissions When Using Generative Artificial Intelligence”—which requires all litigants, including those who are self-represented, to verify AI-generated content against recognized legal sources such as CanLII. In direct contrast to that guidance, the plaintiff’s AI-generated brief contained incorrect and apparently fictitious case citations, including references to non-existent authorities and decisions misdescribed as standing for principles they did not actually express. Although Ms. Mazac later attempted to explain these as “clerical mislabels” and pointed to a separate Book of Authorities that contained correctly named cases, the judge found her explanations unpersuasive. The court noted that the cases she said she had meant to cite did not in fact support the propositions for which she had advanced them in her AI-drafted brief and that the unusual transformation of party names and citation formats was not credibly explained as simple administrative error. The judge concluded that the faulty citations most likely originated from the AI system and that the plaintiff had failed to cross-check them as required. This failure not only undermined the integrity of her submissions but also increased the work required of opposing counsel, who had to expend time and resources attempting to locate non-existent cases and to unravel what, if anything, the authorities actually stood for. The court treated this as an aggravating factor when assessing costs. Applying the same “substantial contribution” approach but adjusting upward to reflect the continued litigation misconduct and the AI-related complications, the court fixed costs at 75% of the defendant’s reasonable legal expenses for this motion. On evidence that his actual fees were $9,500, the plaintiff was ordered to pay $7,125 in costs for the second motion to strike.

Plaintiff’s informal motion to strike portions of the defendant’s affidavits (October 2025)

The costs decision also addresses an informal motion brought by the plaintiff to strike portions of the defendant’s own affidavits, heard in October 2025. Although she had not filed a formal notice of motion, Ms. Mazac’s written brief contained detailed tables specifying objections to 72 paragraphs across three of the defendant’s affidavits, and the defendant responded on that basis. The court agreed to hear the matter as an informal motion rather than insist on formal re-filing. Only parts of 10 paragraphs were ultimately struck, and those portions were largely of limited consequence to the defendant’s overall case. Some of the material struck was conceded by the defendant. The judge rejected the plaintiff’s description of the affidavits as “permeated” with improper content, holding instead that the defects were modest and did not justify the breadth of the plaintiff’s objections. While recognizing that some of her complaints were valid and that the motion was not wholly without merit, the court concluded that she had been largely unsuccessful and that costs should normally follow that result. The plaintiff argued that her self-represented status and the fact that defence counsel should be held to a “higher standard” meant she ought to be shielded from costs. The judge disagreed, reasoning that litigation is between the parties and that to deny costs simply because the losing party is self-represented and the other side is represented by counsel would unfairly double-penalize the represented party, who would then be unable to recover any portion of the legal expense incurred in responding to a mostly unsuccessful motion. At the same time, the court considered it relevant that the motion had been heard informally, saving some preparation expense, and that the plaintiff had enjoyed limited success in having certain passages removed. Tariff C for a motion of this length contemplates costs between $750 and $1,000. Striking a balance between the parties’ positions and the limited scope of success, the court awarded costs below this range, ordering the plaintiff to pay $500 to the defendant for the informal October 14, 2025, motion.

Overall outcome and monetary consequences for the parties

These costs rulings do not determine liability on the underlying misrepresentation claim; they address only the financial consequences of specific interlocutory steps—amending pleadings, managing affidavit evidence, and the procedural conduct of both sides, particularly the self-represented plaintiff. Across the motions, the court consistently emphasized that while some allowance is made for self-represented litigants, they must still respect procedural rules, ensure their evidence is admissible, and exercise care when using tools such as generative AI. As things stand on these decisions, the defendant, Gordon H. Muise, is the successful party on the costs issues. He has been awarded $6,000 for the first motion to strike the plaintiff’s affidavits, $7,125 for the second such motion, and $500 on the plaintiff’s largely unsuccessful motion to strike his affidavits, for a total of $13,625 in immediate costs. In addition, if Ms. Mazac elects to maintain her expanded health-related damages claims and proceed with the associated medical discovery, she must pay a further $20,000 toward the defendant’s additional legal and expert expenses; if she discontinues those specific damages claims, that $20,000 will not be payable. Thus, the total monetary award in favour of the defendant under this costs decision is at least $13,625 and could reach $33,625 if the plaintiff proceeds with the contested medical-based damages, with any separate award or denial of damages on the underlying misrepresentation claim still to be determined in the main action.