The Plaintiff alleged the Defendants engaged in professional negligence, breach of fiduciary duty, and conspiracy. The Defendants were successful in having the claim against them dismissed. Counsel for the Defendants sought full-indemnity Costs.

The Court found no merit to the Plaintiff’s claims, noting that they were filed outside the limitation period. The Rules provide the Court with discretion to order Costs that depart from Schedule “C” costs. Specifically:

• Rule 10.29 provides that a successful party is entitled to a costs award against the unsuccessful party;
• Rule 10.31 allows the court to order one party to pay to another party, as a costs award, the reasonable and proper cost that a party incurred, or any amount that the court considers to be appropriate, including “an indemnity to a party for that party’s lawyer’s charges”; and
• Rule 10.33 sets out the factors the court may consider in making a costs award.

Justice Birkett cited jurisprudence for the proposition that proportionality is contemplated by Rules 10.2 and 10.33, which list the factors the Court may consider in “determining the reasonable amount a lawyer is to be paid” and in “making an award for costs by one party to another”.

The Court emphasized that costs are not dependent on the plaintiff’s ability to pay but are meant to indemnify the successful party. Having considered the unfounded nature of the Plaintiff’s allegations, the lack of evidence, and the Plaintiff’s rejection of a reasonable Calderbank offer, Birkett J. awarded full-indemnity Costs to the Defendants.