Malik J. had previously ordered that the Plaintiffs’ Statement of Claim be struck for delay pursuant to Rules 4.31 and 4.33. The parties could not agree on Costs. The Plaintiffs argued that Costs should be awarded according to Column 5 of Schedule C for the Application and the Action and disputed several items. The Defendants argued that Costs should be based on a 40% indemnity of their legal fees, plus disbursements and taxes.

Malik J. noted that pursuant to Rule 10.29, a successful party is entitled to Costs from an unsuccessful party and that the Court will consider the factors enumerated in Rule 10.33 in determining what the Costs Award should be. Rule 10.33 grants the Court broad discretion to craft a Costs Award that is reasonable and proper. Specifically, Rule 10.31(1)(b) allows the Court to award any amount it considers appropriate in the circumstances, and that there is no presumption that Costs should be awarded on the basis of the appropriate Column of Schedule C. Malik J. noted that the Court of Appeal had previously confirmed that a 40% - 50% level of indemnification provides a reasonable guideline for reasonable and proper Costs.

Malik J. considered the factors in Rule 10.33 and found that the Action was not particularly important in terms of the issues being litigated, and that the Action was not particularly complex. The Defendants were successful in the ultimate result. Although the Plaintiffs did not engage in misconduct, their delay did unnecessarily lengthen the Action and justified a dismissal of the Action. His Lordship ordered that all of the Defendants were entitled to an indemnity of 40% of their assessed Costs, plus GST and disbursements including expert fees, and that the Defendants’ Costs would be assessed by an Assessment Officer in accordance with Rule 10.34.