WINSLOW v THIVIERGE

The Plaintiff alleged that the Defendants breached an agreement for the sale of a property. The Defendants successfully obtained Summary Dismissal of the Action and were therefore presumptively entitled to their costs pursuant to Rule 10.29.

The Defendants, who were separately represented, each sought solicitor-client or enhanced costs. The Defendants argued, among other things, that Section 149 of the Land Titles Act, RSA 2000 c L-4 (the “Act”) supported an award of solicitor-client costs or costs on a full indemnity basis.

Applying the factors set out in Rule 10.33, the Court noted that the Action was relatively simple and of limited importance. Justice Marion found that the Plaintiff had, at times, unnecessarily delayed and complicated the Action in certain respects. However, Marion J. also noted that the Defendants increased costs unnecessarily by retaining separate counsel and by failing to make a Counterclaim or Claim pursuant to Section 149 of the Act.

Justice Marion ruled that neither solicitor-client nor full indemnity costs were appropriate for this Action. Marion J. rejected the Defendants’ reliance on Section 149 of the Act, emphasizing that it was not appropriate to import the compensation analysis under that provision into a separate costs determination. Justice Marion further held that, notwithstanding the lack of a genuine issue requiring a Trial, the Plaintiff’s litigation conduct did not warrant solicitor-client or full indemnity costs.

In light of the foregoing, the Court awarded the Defendants party-party costs based on Column 2 of Schedule C and allowed the disbursements and other costs set out in the Defendants’ proposed Bill of Costs. Justice Marion noted that the resulting award exceeded 50% of the Plaintiff’s actual incurred costs. Marion J. directed that there be no costs arising from the costs determination itself and noted that any costs Settlement Offers would be considered if provided to the Court within two weeks of this decision.