The Parties were unable to reach agreement on the Costs obligation arising from a three-day Trial. The Plaintiffs were successful at Trial, with Justice Bercov finding the Defendants liable for nuisance, and awarding $25,250 in damages less settlement funds received under a Pierringer Agreement with a settling Defendant.

The Parties agreed that the Plaintiff, having been successful at Trial, was entitled to Costs; however, they disagreed on the quantum of the Costs Award. First, Justice Bercov considered whether Rule 10.42 was applicable based on the damages claimed. Justice Bercov noted that, because the Defendant’s bylaws were made under the Condominium Property Act, RSA 2000, c C-22 (the “Act”), and the Provincial Court’s jurisdiction does not extend to bylaws created under the Act, it was not possible for the issue to be raised in Provincial Court. Accordingly, Justice Bercov exercised judicial discretion under Rule 10.42 and did not apply it to the case at bar.

Justice Bercov next considered whether enhanced Costs were appropriate. Prior to considering the conduct of the litigants, Justice Bercov recognized that, under Rule 1.2, the purpose of the Rules is to encourage a fair and just resolution of claims, Rule 4.2 enumerates the responsibilities of the Parties in the litigation process, and Rule 4.16 requires the Parties to engage in alternative dispute resolution processes in good faith. Further, Justice Bercov identified that Rules 10.31 and 10.33 enable the Court to award Costs for either the reasonable Costs that a party incurred or an amount that the Court considers appropriate. Ultimately, noting that the Defendants refused to attend alternative dispute resolution processes, Justice Bercov concluded that when a party refuses to attend alternative dispute resolution on the basis that there is no merit to the claim, enhanced Costs are appropriate where it is determined at Trial that there was merit to the claim.