This Costs Decision arose out of two interlocutory Applications brought to address issues with production of documents, as well as Undertakings refused and objections raise on Questioning on an Affidavit of a witness. Jones J. confirmed that pursuant to Rule 10.29 and the Court’s discretion, a successful party to an Application is entitled to Costs payable forthwith against the unsuccessful party, and the Court will consider the factors set out in Rule 10.33, specifically the relative success of the successful party. The Court determined that the successful party had achieved “substantial success” and was entitled to Costs.

In determining the proper quantum of the Costs to be awarded, given that the Applications were matters not involving monetary amounts, the Court considered whether an award should be based on the amount sought in the main Action (which would have engaged Column 4 of Schedule C) or, as the matters had no monetary amount, if Column 1 of Schedule C should be used as suggested in Schedule C.

The Court awarded Costs in favour of the successful party pursuant to Column 1 of Schedule C payable forthwith, rather than in the cause as requested by the unsuccessful party.