TERRIGNO v CELMAINIS

This decision concerned the determination of costs following a prior decision in which Justice Malik allowed the Defendants’ Application to disqualify the Plaintiff’s counsel and dismissed the Defendants’ Application for consolidation.

The parties acknowledged mixed success. However, Malik J. held that the Defendants achieved substantial success, as the disqualification Application was the primary issue. The Court rejected the Plaintiff’s argument of partial success and confirmed that costs need not be apportioned on an issue-by-issue basis.

Applying Rules 10.31 and 10.33, Malik J. emphasized that costs are discretionary and should reflect proportionality and partial indemnity. The Court found that actual costs claimed by the Defendants to be excessive for a half-day hearing, and instead assessed costs under Schedule C, Column 2, with a reduction to account for duplication.

Justice Malik declined to increase costs based on alleged litigation misconduct, finding insufficient evidence that either party caused delay or unnecessary proceedings. However, Malik J. found that the Plaintiff’s abusive and offensive correspondence to opposing counsel warranted sanction. Although the Plaintiff was self-represented, the Court noted his legal training and prior judicial criticism of similar conduct and awarded enhanced costs to denounce the behaviour.

The Court declined to apply a multiplier, finding that the enhanced costs award sufficiently addressed the Plaintiff’s conduct. The Court also found that the Plaintiff’s informal settlement offers did not meet the requirements of valid Calderbank offers and did not affect costs.

In the result, the Court awarded each Defendant Schedule C costs, disbursements, and enhanced costs.