This was a Costs Decision resulting from a successful Application for partial Summary Dismissal. The successful Applicant sought 75% recovery of legal expenses incurred prior to issuance of a Calderbank offer and 100 % of expenses incurred thereafter.

The Summary Dismissal Application had involved an Application to dismiss one of 11 claims for declaratory relief respecting the ownership of parcels of land. The Applicant sought enhanced Costs on the grounds that the issues were complex, the Respondent had raised unnecessary arguments that had to be addressed, and the Respondent did not beat a Calderbank offer made by the Applicants. The Respondent argued that the issues were not complex, that it had advanced reasonable arguments, and that the Applicants had not properly proven their legal expenses. The Respondent also argued that any Costs Award should be set off against Costs awarded to it in earlier proceedings.

The Court awarded Schedule C Costs for steps taken up to the time of the Calderbank offer and double Costs for steps taken afterward. In making its determination, the Court noted that the facts were effectively common ground, the issues, though somewhat complex, were no more complex than those often encountered in similar contexts, and the “irrelevant and unnecessary” arguments advanced by the Respondent were not asserted in her Pleadings and so were not required to be addressed by the Applicant. The Court also observed that the partial Summary Dismissal Application should not have proceeded in the first place since it did not dispose of the Action or a material subset of it, there was no urgency necessitating partial summary adjudication, and no positive spillover effects resulted. The Court also expressed concern that the 10 outstanding claims could similarly be subject to unnecessary Applications for partial Summary Dismissal. In support of its conclusion, the Court quoted case law discussing the rarity of Applications for partial summary adjudication and policy concerns associated therewith. In obiter, the Court commented that the same conclusion would likely follow had the Application proceeded pursuant to Rule 7.1.

Regarding the Respondent’s claim for setoff against Costs previously awarded in her favour, the Court held that, while setoff in costs may be appropriate pursuant to Rule 10.31(4), the absence of quantification of the prior Costs Award made setoff premature.