The Defendant, Mr. Smith, had been employed by the Plaintiffs, Tomco Production Services Ltd. and Tomco Industrial Ltd. (“Tomco”). He left Tomco and became an employee of the Defendant, Jimbob Rentals (2000) Ltd. (“Jimbob”). Tomco commenced an Action against Mr. Smith and Jimbob, alleging that they were using confidential information. All of the Defendants were unsuccessful in an Application for Summary Dismissal.

The parties were unable to agree on the appropriate column for Costs under Schedule C, as well as whether a multiple for Costs was appropriate and whether Costs should be awarded forthwith or in the cause. Nixon J. stated that the general rule under Rule 10.29(1) was that the successful party was entitled to Costs payable forthwith. When exercising discretion to award Costs, the Court could consider any of the factors set out under Rules 10.33(1) and 10.33(2). In this case, there was no amount claimed in the Action, so Column 1 of Schedule C applied. Nixon J. noted that it was not possible to set out a general principle for situations that required a higher Costs column or a multiple of a Costs column. Each case needed to be assessed on its own circumstances and this case required consideration of complexity, duration, difficulty, cooperativeness of the parties, and the end result.

Justice Nixon noted that the purpose of Rule 6.3(2) is to ensure that a Respondent is properly notified of the arguments which need to be addressed in the Application. The Rule also allows the Court to properly prepare for the hearing. “Absent this Rule, both the Respondent and the Court could be blindsided”. In order to determine Costs, the Court considered several factors including that Tomco was required to address a total of six issues in the Application, even though Tomco was not notified of two of these issues which was contrary to Rule 6.3(2).

Nixon J. noted that when a Respondent was successful in avoiding a Summary Judgment, Costs should not be granted in the cause, as this would be inconsistent with the nature of the Application and the results, which were for the benefit of the Respondent. The Court awarded Costs at a multiple of 2 times the amounts in Column 1, payable forthwith.