The Plaintiff brought a prior, unsuccessful, referral pursuant to Civil Practice Note 7 (“CPN7”) requesting that the Court determine whether the conduct of the Defendant amounted to an Apparently Vexatious Application or Proceeding (“AVAP”). The Defendant sought costs for the Plaintiff’s referral.

Justice Rooke stated that, while Rule 10.29 generally sets out that the successful party is entitled to costs against the unsuccessful party, the primary agent conducting the proceeding in the context of CPN7 is the Court. However, because in considering the earlier unsuccessful referral the Court did not undertake a CPN7 process, the Defendant was not required to respond to the unsuccessful Rule 3.68 procedure. As a result, the Defendant was not entitled to costs under Rule 10.29 as the successful party.

However, after canvassing further case law related to the Court’s consideration of costs and noting the Court’s broad discretion to award costs pursuant to Rule 10.31, Justice Rooke determined a costs reward against the Plaintiff was appropriate. Justice Rooke noted that the Defendant is entitled to costs because of the Plaintiff’s poor litigation conduct. Specifically, the Plaintiff concealed the real issue in dispute and caused a waste of Court resources contrary to Rules 1.2 and 10.33.

Justice Rooke also ruled that the Plaintiff’s approval of the Order granted was dispensed with pursuant to Rule 9.4(2)(c).