The Applicant Condominium Corporation unilaterally filed a Discontinuance of Action pursuant to Rule 4.36, offered to pay $8,000 in Costs, and invited the Respondents to bring an Application in the event they believed they were entitled to a greater Costs Award. The Respondents brought this Application for, among other things, an enhanced Costs Award.

The Respondents asserted that the Condominium Corporation’s Discontinuance amounted to abuse of process. Master Summers highlighted that the Condominium Corporation was entitled to Discontinue the Action under Rule 4.36. Further, Master Summers concluded that this matter was distinguishable from previous jurisprudence that had found a Discontinuance to be an abuse of process, and as such, rejected the Respondents’ assertion of abuse of process.

With regards to the Respondents request for enhanced Costs, Master Summers noted the starting point in considering Costs is Rule 10.33, followed by the application of Rule 10.31 to consider options available to the Court in determining Costs Awards. Master Summers applied Rules 10.33 and 10.31 to the evidence before him and determined that the Condominium Corporation should pay two-thirds of the Respondents’ reasonable legal fees due to, in part, failure of its representative to prepare for Questioning.