Cost consequences for changing evidence from discovery without notice

Malka v. Vasiliadis, 2013 ONCA 239 is an example of the failure to give notice that evidence given on discovery is no longer that to be given at trial lead to cost consequences.  Such examples are uncommon and that case is useful:

[1]          We are troubled by the fact that at trial the respondents changed their evidence from what it had been at discovery without giving proper notice. 

[2]          On discovery both Vasiliadis and Lugassy said that the key events with respect to the termination of the lease took place on Friday, February 19, 1999.  At trial they changed their evidence and said that these events took place on Monday, February 22. Despite this known change in the evidence, notice of the change was not provided to the appellants in writing as the Rules of Civil Procedure require. The respondents were obliged to give written notice to the appellants when they became aware that their evidence would change.

…

 [8]          While the change in evidence did not impact the result, in our view, at this stage, the appropriate remedy for the failure to give notice of the change in evidence is that there be costs consequences to the respondents. Therefore, while the appeal is dismissed, the respondents’ claims for costs of the appeal will be reduced and each of the respondents is awarded the reduced amount of $5,000, inclusive of disbursements and H.S.T.