The Plaintiffs, Trevor Boudreau et al, and the Third Parties to the Action, Antonio Parrotino et al, applied for a Costs award in excess of the general rule for Costs following the Court’s Decision that the Defendant, De Palma, committed fraudulent misrepresentation and caused  delay in the litigation.

Ashcroft J. stated that Costs are in the discretion of the Court, and a departure from the usual party and party Costs should only be done in rare and exceptional circumstances; however, those rare and exceptional circumstances include where there has been fraudulent conduct or a deliberate delay in litigation. Justice Ashcroft confirmed that Costs are not usually awarded in a JDR pursuant to Rule 10.31(2)(c) unless a party engages in “serious misconduct” in the course of the JDR proceedings. Ashcroft J. held that the Defendant’s unavailability at a JDR due to a death in the family did not amount to serious misconduct.

However, Ashcroft J. held that the nature of the Defendant’s liability, specifically his fraudulent conduct and, “to a lesser extent” the Defendant’s purposeful delay by not engaging counsel for over a year after he was discharged from bankruptcy warranted an elevated Costs award. The Court awarded the Plaintiffs and Third Parties two times the Costs set out in Column 3, Schedule C of the Rules.