GNYRA v CONDOMINIUM CORPORATION NO. 0211811

This Appeal arose from a costs decision of an Applications Judge who awarded costs to the Respondent.

The Applications Judge found the Appellant engaged in improper conduct under Section 67 of the Condominium Property Act, and the Respondent was entitled to full indemnity costs. The Appellant argued that since there was no intentional misconduct, bad faith actions, or litigation misconduct, an award of full indemnity costs was not appropriate. The Appellant further argued that the Respondent had only achieved limited success in the underlying application and, as such, should not be entitled to costs pursuant to Schedule C.

The Respondent maintained that full indemnity costs were appropriate as a result of the Appellant’s improper conduct; or, in the alternative, that partial indemnity costs above 50% of actual costs were appropriate.

In reviewing the Application, Justice Froese noted that as the successful party, the Respondent was entitled to their costs, but that there were a number of discretionary factors to consider in determining the quantum of those costs. The Court considered submissions from the parties on how costs should be considered in the context of condominium disputes, and how that context ought to impact the Court’s decision. Froese J. noted that typically, full indemnity costs are awarded in circumstances where a party is guilty of positive misconduct, and, in the present case, the Appellant’s improper conduct arose from a failure to act rather than an act in issue. As such, full indemnity costs were not appropriate in this situation.

However, the Court noted that while the Appellants did not take part in any positive misconduct, their failure to meaningfully engage with the Respondent necessitated the litigation. To reflect for the Appellant’s conduct, the Court awarded costs at 50% of the Respondent’s assessed legal fees.