The Defendants unsuccessfully applied for Summary Dismissal of the Plaintiff’s Action. The Plaintiff applied for an Order for payment of 60% of the Costs that she incurred. The Plaintiff submitted that an award of Costs pursuant to Schedule C would be inadequate because Column 5 only entitled her to less than 5% of the actual fees incurred. The Defendants argued that Costs should be determined by the Trial Judge following Trial.

The Court first noted that it was well established that Costs were awarded on the assumption that a winning party deserved compensation for legal costs, but that full indemnity of legal fees could significantly hamper a party’s access to justice. While Costs consequences were an effective mechanism for controlling litigation, not all unsuccessful cases were without merit; therefore, a party should not be unduly punished for bringing a losing Action. Mahoney J. held that Costs on indemnity basis were not justified based on the Application being complex or novel. Nonetheless, the Application required extensive research and preparation. His Lordship held that, while the Summary Judgment Application was not an abuse of process, the Plaintiff was successful in defending against a complex and voluminous Application. On this basis, Justice Mahoney awarded the Plaintiff Costs calculated using the draft Bill of Costs prepared by Plaintiff’s counsel, except for the fee amount under Column 5 which was doubled.