Topolniski J

1.2: Purpose and intention of these rules
1.7: Interpreting these rules
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff corporation was unsuccessful in its bid for injunctive and declaratory relief against its tenant, the Defendant. The parties disagreed about Costs consequences. The Defendant, Greyhound, argued that $45,000.00 was within the 30-50% range of indemnification intended by Schedule C of the Rules of Court and wanted that amount payable immediately or, in the alternative, double Column 5 Costs for all steps taken after it made a Calderbank offer. The Plaintiff wanted Costs of the Application set at $2,500.00 to $5,000.00, based on Column 1 of Schedule C.

Topolniski J. stated that interpretation of the Rules requires a purposive and contextual approach pursuant to Rule 1.7. Foundational Rule 1.2 describes the purpose of the Rules as a means by which claims can be fairly and justly resolved in a timely and cost-effective way. The provisions dealing with Costs uphold the function of Rule 1.2(2)(e) and provide an effective, efficient and credible system of remedies and sanctions with which to enforce the Rules, Orders and Judgments. Rule 1.2 also obliges litigants to periodically evaluate dispute resolution alternatives with or without assistance from the Court. Justice Topolniski noted that, pursuant to Rules 10.29(1) and 10.31 Costs awards are discretionary. Further, Rule 10.33(1) describes the considerations in making a Costs award; it dovetails with Rule 1.2(4) which requires a proportionate remedy when the Court is called upon to exercise its discretion.

Topolniski J. awarded Costs under Column 5 of Schedule C, and double Column 5 Costs for all steps after Greyhound’s Calderbank offer was made. The Plaintiff sought deferral of payment of the Costs award until Greyhound delivered vacant possession of the leased premises on or before expiration of the lease. Topolniski observed that a successful party is entitled to its Costs at the time of the Judgment, and that Rule 10.29 requires an unsuccessful litigant to pay Costs forthwith. Accordingly, Topolniski J. ordered the Costs payable forthwith.

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