The Costs Endorsement concerned the Costs of an Appeal from the Decision of an Applications Judge granting the Plaintiff partial Summary Judgment. The Plaintiff sought a Costs Award of $71,953.86 which represented 50% of the legal fees that it incurred in obtaining the Judgment, plus disbursements (the “Plaintiff’s Claim for Costs”). The Defendant argued that Costs should be awarded based on Schedule C.

The Court noted that the Plaintiff was entitled to Costs of the Appeal and that the Plaintiff’s reasonable and proper Costs must be determined considering all factors, including those set out in Rule 10.33. Further, the Court noted that the jurisprudence confirmed that it was entitled to determine Costs as a percentage of legal expenses, Schedule C, a modification of Schedule C, or some other alternative.

The Court determined that the Plaintiff’s claim for Costs was not reasonable on the basis that (1) the accounts it had submitted did not contain the details the Court required to assess whether the accounts rendered were what reasonably should have been incurred; (2) it claimed for damages due to delay which had not been adjudicated; (3) it was not possible to fairly consider whether the Defendant should have accepted the offers exchanged as those pertained to a settlement of the Action as a whole; (4) it was unpersuaded that the cancelled Mediation could be considered a delay tactic by the Defendant; and (5) it was not possible from the information the Plaintiff provided to determine the cost of legal services that the Plaintiff paid associated with earlier proceedings, in the event the Court had jurisdiction to order Costs in excess of what had already been ordered in the earlier proceedings.

In determining what the reasonable and proper Costs were, the Court set out that it was entitled to consider the failure to comply with the obligation on all parties to identify the real legal issues in dispute and facilitate the quickest means of resolving disputes at the least expense. The Court noted that the Defendant did not make an attempt to organize, classify, or link the documents to the issues in dispute which in substance amounted to a document dump on the Plaintiff and the Court. The Court found that that a reasonable inference was that the Plaintiff incurred significantly more Costs to review the materials and draft a Brief that was organized and responsive to the issues than the amounts permitted under Schedule C multiplied by 1.5. The Court accordingly determined that a lump sum Costs Award was appropriate in the amount of $10,000, including GST and disbursements.