The Applicants sought a determination of the appropriate costs to be awarded following a successful Summary Dismissal Application. The Applicants alleged that the Respondents’ conduct unnecessarily complicated the matter and resulted in increased legal costs. As such, the Applicants sought full indemnity costs or, alternatively, substantial indemnity costs. The Respondents argued that full indemnity costs were inappropriate in the circumstances and sought for costs to be held in abeyance pending appeal of the Summary Dismissal Application.

Justice Neufeld noted that Rule 10.29 sets out the general principle that a successful litigant is entitled to recover costs, and as such the only question was how those costs should be calculated. The Court then considered the factors noted in Rule 10.33 -- in particular, the procedural complexity of the matter, the quantum in dispute, and the complete success of the applicant. The Court went on to note that while the Respondents’ conduct did complicate the dispute, it was not an abuse of process. The Respondents advanced significant and voluminous materials, which necessarily caused delay and additional costs, but this alone was not litigation misconduct. As such, Justice Neufeld held that full indemnity costs would not be appropriate.

While indemnity costs were not appropriate in this matter, the Court also recognized that the amounts which would be recoverable under Schedule C of the Rules would not adequately reflect the costs reasonably incurred by the Applicants in addressing the Respondents’ claim. To reflect this, the Court directed that the Applicants be awarded with costs equal to 40% of reasonable fees and disbursements.