Justice Anderson was tasked with determining the amount payable to the Plaintiff pursuant to an accounting in this protracted litigation. Specifically, Justice Anderson considered what Costs were appropriate in relation to a six-week Trial that was held in 2011. The Defendants sought 75% of their Trial Costs, including disbursements for experts.

Justice Anderson considered relevant jurisprudence and noted that, under Rule 10.20, the successful Party is prima facie entitled to Costs. However, Justice Anderson noted that pursuant to Rule 10.33, the Court may consider any factor enumerated in the Rule. Further, Rule 10.33(2) enables the Court to consider if the conduct of a Party to the litigation unnecessarily lengthened the Action when imposing or varying a Costs Award.

After considering the relevant jurisprudence, Justice Anderson noted that despite the fact the Plaintiff was successful in some aspects of its claim, the majority of the Trial was spent arguing an issue that they were ultimately unsuccessful on. As a result, Justice Anderson concluded that the Defendant was entitled to recover two thirds of its taxable Costs from the Plaintiff, while the Plaintiff was entitled to recover one third of its taxable Costs from the Defendant.