6.9: How the Court considers applications
10.48: Recovery of goods and services tax
13.18: Types of affidavit
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff had applied for Summary Judgment with respect to the liability of a former tenant. Master Robertson reserved making a final determination regarding the quantum of damages given concern over inadequate evidence on the existing record relating to the issue of mitigation. The Plaintiff had seized the contents of the subject premises, but had not provided evidence of what it had done with those contents. The parties then provided further Affidavit evidence and written submissions with respect to mitigation, and sought a ruling on Costs, pursuant to Rule 6.9(1)(c) which allows the Court to hear an Application by a process involving documents only.

The Plaintiff referred to evidence concerning the disposal of equipment contained in the Affidavit in support of the Summary Judgment Application. Master Robertson held that this evidence was inadmissible pursuant to Rule 13.18(3) which requires Affidavits used in support of an Application to dispose of all or part of a Claim to be sworn on the basis of personal knowledge. Furthermore, the Affidavit did not disclose the source of the information upon which the statement was based, contrary to Rule 13.18(2). On the evidence presented by the parties, Master Robertson held that the Plaintiff had failed to properly or effectively mitigate its losses and reduced the damages owed by the Defendant.

Regarding Costs, Master Robertson held that the Plaintiff was entitled to solicitor client Costs, as that relief was provided in the subject lease. Master Robertson reduced the Costs, holding that neither party was entitled to Costs on the present Application to address the mitigation issue as it may not have been necessary if proper details regarding the value of the seized equipment been presented in the original Summary Judgment Application. Master Robertson also found that the Plaintiff was likely entitled to an input tax credit and thus, pursuant to Rule 10.48(2) was not entitled to claim GST on its Costs. Master Robertson held that the Defendant was entitled to party and party Costs against the Third Parties in the proceedings under Column 2 of Schedule C despite the fact that the amount ultimately awarded was less than the Provincial Court level because the amount claimed in the Action was approximately $125,000.

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