The Plaintiff initiated three separate Actions against various Defendants following injuries claimed from motor vehicle accidents occurring on different dates. The Actions were processed separately but were collectively addressed in a Joint Application to strike the Actions due to procedural issues. The Plaintiff did not respond to the Applications or participate further beyond Pre-Trial Questioning. On December 19, 2023, Justice Eamon found that service of the Joint Application was good and sufficient, struck out the Plaintiffs claims in the three Actions, ordered that each Defendant was entitled to Costs, and set out the process for quantifying the costs (“Endorsement 1”). Justice Eamon went on to find that Endorsement 1, the Formal Order dated December 19, 2023, and respective Costs submissions and supporting documentation were served in accordance with the Rules.

The Court therefore turned its attention to determining Costs and concluded that the portion of their lawyer’s fees, plus their reasonable third-party disbursements and “other charges” under Rules 10.29 and 10.31(1)(a). In calculating the amount of the fees awarded to a litigant under Rule 10.31(1)(a), the most common methods are to award a percentage of their reasonable solicitor-client accounts or to award an amount calculated under the non-binding tariff in Schedule C to the Rules. The Court determined that Schedule C was appropriate for quantifying Costs, because (1) the Actions were relatively routine in the sense that the underlying allegations were not complex and the Actions were in their early stages, and (2) the Defendants should not be forced to disclose their privileged legal bills to the Plaintiff or be forced to undergo the expense and delay of assessing their accounts, in view of the Plaintiff’s misconduct and abuse of process.

Further, the Court found that Column 4 was the appropriate column based on the amount claimed in the Statement of Claim. The Court found that the Defendant Schafer was entitled under Rule 4.29 to double schedule C Costs for steps taken after service of the Formal Offer, as the settlement offer complied with the formal requirements of Rule 4.24, and the Court did not find any special circumstances or Orders that would negate the application of the Rule, pursuant to Rule 4.29(4)(e)).

The Defendant Schafer also claimed for full Costs of the Joint Application. The Court noted that in some cases, each set of Applicants in a Joint Application should not receive full Costs because counsel for some of them take the lead and counsel for others expend less effort. However, the Court concluded that the Defendant Schafer had to incur legal costs to obtain dismissal of an Action that had become abusive, and that the Court had discretion to award enhanced Costs for steps of the Action taken to address litigation misconduct, pursuant to Rule 10.33(2), such as abuse of process. Further, the Plaintiff had not opposed the Costs Application or suggested that the three law firms did not expend approximately equal amounts of effort for their respective clients. Therefore, it was appropriate to award full Costs of the Application to each of the three groups of Defendants.