The Plaintiffs successfully appealed a Summary Dismissal decision, sought Costs for the Appeal and sought the return of the Costs awarded by the Master. The Defendant condominium corporation (the respondent on the Appeal) argued that the Court should not grant Costs for the Appeal or, alternatively, that Costs should be in the cause. The Defendant submitted that a return of the Costs awarded by the Master was not warranted because of the Plaintiffs’ improper Affidavit, admissions during Questioning on Affidavit, and their attempt to rely on evidence not properly before the Court. The Defendant argued further that the Plaintiffs also failed to comply with the procedural requirements of Rule 6.14 at the Appeal.

Justice Lee referred to Rules 10.31 and 10.33, and the Court’s general discretion to grant Costs. His Lordship held that the procedural and evidentiary irregularities were due to the conduct of the Plaintiffs’ former counsel and, as such, the Plaintiffs should not be denied a return of their Costs. At the Appeal, the Defendant waived all of the procedural irregularities when the matter was heard; and, the Defendant did not suffer any prejudice from the deficiencies. Therefore, the irregularities had minimal bearing with respect to Costs. The Plaintiffs were awarded their Costs on the Appeal and a return of the thrown away Costs previously paid pursuant to the Master’s Order.