ELLIOTT v PIERCE

The Court ordered costs in favour of the Defendant following the division of matrimonial property at Trial. The parties disagreed on the appropriate costs and made submissions on their respective positions.

The Defendant sought significant costs calculated as 80% indemnity costs. In making their submission, they relied on various factors set out in in Rule 10.33, including the degree of success and complexity of the Action. The Plaintiff argued that the Action was not complex and the parties achieved mixed success.

Justice Little did not respond to each of the points raised by the Defendant but instead focused on the overarching principle of proportionality in determining costs. Although the Defendant did accurately set out the various considerations for determining the quantum of cots, employing these considerations without any adjustment for proportionality would amount in the Defendant receiving more than $20,000 more than they had paid for the litigation.

As such, the Court awarded costs in an amount that was roughly half of what the Defendant had initially sought.