The parties asked the Court to address the costs arising from an Appeal and a decision granting a Stay pending Appeal and dismissing a Cross-Application to strike. The parties agreed that the Respondents were entitled to costs. The issue was the quantum of costs of the Appeal and stay Application.

The Court considered Rule 10.30 which lays out when costs may be awarded - for example, after an application has been decided or judgment awarded - and 10.31 which lays out the discretion the Court has to award a varying quantum of costs to the successful party. It further noted that 14.88 allows a successful party upon appeal to be entitled to a costs award.

The Court noted that costs awards are discretionary, informed by judicial principles of reasonableness, fairness, balance, and equity. The purpose of costs is to provide a degree of relief from litigation expenses to a successful party. They are considered holistically and depend in part upon the degree of success in the Court below, degree of success on Appeal, success or lack of success on interlocutory Applications, the relative sophistication of the parties, remedies granted in the Court below and remedies granted on Appeal.

The Appellant was successful on the preliminary Application for a Stay and a Cross-Application to strike. On Appeal, both parties’ Applications to admit new evidence were dismissed. The Respondents were substantially successful on Appeal, but the Appellant prevailed in having the remedy returned to the Special Chambers Judge. Both parties were relatively sophisticated and were arguably similarly situated.

The Court, taking into account these factors, held that the costs on all matters should be set at $89,000.00, all inclusive, payable to the Respondents.