This was a Costs decision arising from an Action wherein the Defendant was the substantially successful. The litigation between the Parties had been ongoing since February 2009 and the Court procedure card was 21 pages long, listing 20 different Judges as having heard various Applications over the 13 years that the file had been with the Court system.

The Court turned to Rule 10.33, which lists the considerations that go into the determination of the amount of a Costs Award, as well as the options that the Court has in making a Costs Award as set out in Rule 10.31, specifically, the authority of the Court to direct one Party to pay to another Party a percentage of assessed Costs. The Court noted that the intention of a Costs Award is to balance the unfairness of requiring a successful Party whose conduct is not blameworthy to bear any Cost, and the chilling effect on Parties bringing or defending claims if the unsuccessful Party is required to bear all the Costs.

Ultimately, the Court considered all aspects of the file, including the fact that the Defendant was substantially successful on most issues. The Court exercised discretion to award approximately 40% of the legal fees incurred, and applied an additional 40% discount, as the conduct of the Defendant warranted a further reduction given his aggressive financial positions. Effectively, the Court noted that the Defendant was not an innocent party and his actions contributed to the 21-page procedure card.