4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
10.33: Court considerations in making costs award

Case Summary

The Plaintiffs sued the corporate Defendant and its principal for breach of contract and for breaching the Fair Trading Act, RSA 2000 c F-2 (“FTA”), in connection with a dream home renovation that went badly awry. The Court held that the Defendants were liable for breach of contract and for breaching the provisions of the FTA.

In determining Costs, the Court referred to Part 10, Division 2 of the Rules and the wide discretion that Judges have in awarding Costs. The Plaintiffs made a Formal Offer under Rule 4.24 in advance of Trial, but they did not beat that offer, and therefore did not qualify for double costs under Rule 4.29. However, Rule 10.33(2)(g) provides the basis for elevated costs in the event of litigation misconduct. The Defendants refused to set this matter down for Trial after the necessary steps had been completed, which resulted in delay and additional proceedings, and ultimately did not participate in the Trial itself. Greckol J. held that, when parties engage in litigation and simply ignore part of the process, this constitutes litigation misconduct. In this case, the litigation misconduct was to a sufficient degree so as to attract double Costs.

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