The Decision arose from an Appeal of an Applications Judge’s Decision where the parties could not agree on Costs. At first instance, the Applications Judge found the corporation's conduct improper under the Condominium Property Act and ordered remedial actions and Costs in favor of Ms. Aubin, the Respondent on Appeal. The corporation appealed, and the Appeal was granted, setting aside the initial Costs Award and granting Costs of the Action to the corporation.

The corporation argued that it was entitled to indemnification Costs, whereas Ms. Aubin asserted that the indemnification Costs were excessive, lacked reasonableness and proportionality and were not supported by evidence. The Court noted that the principle of proportionality applies to non-monetary issues as well, and even though the initial remedy sought was not monetary, the principle applied. The Court determined that the indemnification Costs requested by the corporation were far greater than the value of what was being sought by Ms. Aubin at first instance. The Court noted that awarding a percentage of fees is not proper if the percentage is disproportionate to the issues and the amounts involved. The Court concluded that the amount requested was inordinately high and that the corporations’ prepared Bill of Costs did not possess the sufficient evidence to ground the amount requested.

The Court found that though the corporation failed to efficiently conduct the proceedings, new evidence of steps taken after the Order granted by the Applications Judge were factored into the Appeal Decision reasons. Though Rule 10.29 provides that the successful party is entitled to Costs, the steps the corporation took to satisfy the terms of the Order were contributing factors to its success on Appeal. Therefore, the somewhat mixed success of both parties favoured granting Costs pursuant to Schedule C. Consistent with the considerations listed at Rule 10.33(1)(2), the relatively low amount at stake, the jurisprudential value of the case, the fact that Ms. Aubin was not vexatious or frivolous in bringing her Action, and the fact that the matter was not overly complex, further supported granting Costs pursuant to Schedule C. The Court, after considering the factors listed at Rule 10.33(2), applied a multiplier of 1.5 for the Appeal to account for the reasonable settlement offer made by the corporation subsequent to the corporation taking steps to satisfy the terms of the Order.

Therefore, using its discretion under Rule 10.31, the Court rejected the corporation’s claim for indemnification Costs, and Costs were awarded pursuant to Schedule C, Column 1, with a multiplier of 1.5 for the Appeal and no multiplier for other steps taken in the Action. The Court noted that, pursuant to Rule 10.41, an Assessment Officer is permitted to review the Bill of Costs and that the parties could appear before the Assessment Officer for resolution of any disputes concerning steps taken or not taken, as there was some dispute in that regard that had not been resolved in the Decision.