The Applicants, A.G. Clark Holdings Ltd. and Giebelhaus Developments Ltd., carrying on business in partnership with others as Clark Builders (collectively, “Clark Builders”), made an Application for an Order granting Costs in favour of Clark Builders as against the Respondent, HOOPP Realty Inc. (“HOOPP”).

The dispute between the parties had a lengthy history dating back to 2002 when HOOPP commenced the Action. Of importance to the Application, Clark Builders had never filed a Statement of Defence or formally participated in the Action. The parties had entered into tolling agreements while they attempted to reach a resolution. During this time, Clark Builders retained various experts to comment on the issues raised against it.

In 2012, Clark Builders applied to strike the Action. That Application was dismissed; however, it was referred back to the Court of Queen’s Bench by the Court of Appeal, and after a re-hearing of the matter, the Application to strike was granted. This ruling was upheld on Appeal and leave to Appeal was denied by the Supreme Court.

Contested Bills of Costs were presented and partially paid. However, HOOPP refused to pay the expert costs incurred by Clark Builders which gave rise to this Application. HOOPP argued that these expert costs were incurred before Clark Builders had defended against the Action or otherwise participated in any formal way, and therefore these Costs are not recoverable pursuant to Rules 10.31 and 10.33. The Court disagreed. Gill J. reiterated that the Court may order a party to pay the reasonable and proper Costs that another party incurred to file an Application or to participate in an Application, proceeding or Action. This may be done after considering the factors listed in Rule 10.33. Clark Builders was forced to participate in the Action after it was named in a Statement of Claim. The fact that it did not file a Statement of Defence did not detract from this. In fact, Clark Builders succeeded in having the entire Action dismissed which was analogous to being successful at Trial.

The Application was granted with Costs.