Alana M. Daley

Following the dismissal of the plaintiff's product liability action for failing to participate at trial, the successful defendant sought costs of $139,739.85 plus disbursements on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that the defendant's offers to settle did not trigger Rule 49 consequences and the plaintiff's conduct did not warrant an elevated scale.

Noting that the defendant was represented by in-house counsel who did not docket time, and that the amount claimed was excessive with duplication of effort, the court fixed costs on a partial indemnity scale at $36,000 plus HST and $7,752.05 in disbursements.

The defendant brought a motion to dismiss the plaintiff's action after the plaintiff, who was self-represented, failed to call any evidence during a ten-day judge-alone trial.

The plaintiff had repeatedly refused to participate in the trial following the denial of his third motion to adjourn.

The court dismissed the action under Rule 52.01(2)(c) of the Rules of Civil Procedure, emphasizing the court's inherent jurisdiction to control its process and ensure fairness to all litigants, particularly when a party deliberately circumvents court orders and delays proceedings.