4.33: Dismissal for long delay
10.33: Court considerations in making costs award

Case Summary

Justice Lema issued a Costs Award against the corporate developer of a commercial condominium and several related parties. While all parties agreed that awarding Costs pursuant to Schedule C was the appropriate starting point, the issue concerned what, if any, adjustments to Schedule C were suitable.

The condominium corporation arguing for enhanced Costs was originally controlled by the unsuccessful parties (including the corporate developer), and had sued the unit holders for various unpaid contributions. However, eventually the unit holders came to control the condominium corporation, which led to an agreement to end the Actions by consent Order. The corporate developer and related parties opposed the consent Application to end the Actions.

The condominium corporation claimed that the unsuccessful parties had, among other things, contested the consent Application to end the Actions without standing to do so, and after it was evident that the period of long delay had expired pursuant to Rule 4.33. However, the Court did not consider this argument as the parties had not addressed it in their Costs submissions.

The condominium corporation also argued that the unsuccessful parties offended Rule 10.33(b) which allows the Court to impose, deny or vary Costs Awards. Specifically, the condominium corporation argued that, among other things, the conduct of the unsuccessful parties was unnecessary, or unnecessarily lengthened and delayed the Action. Therefore, it argued that full indemnity Costs were appropriate.

The Court found that the unsuccessful parties had not, for the most part, acted in a way that caused “unnecessary litigation” and refused to order full indemnity Costs to the condominium corporation. It did, however, order an enhanced Costs adjustment.

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