Following a successful appeal in which the appellants had the summary judgment motion dismissed (2026 ONCA 121), the court addressed costs of the motion below.
The appellants sought substantial indemnity costs of $96,158.17 based on two pre-hearing offers to settle, or alternatively partial indemnity costs of $66,575.44.
The court found neither offer met the criteria under rule 49.10(1) because both expired before the motion hearing, and declined substantial indemnity costs on a discretionary basis.
The court reduced the fees to $40,000 plus HST on a partial indemnity basis, finding the associates' hours excessive and factoring in the appellants' failure to raise the partial summary judgment issue at scheduling.
Costs of $51,600 inclusive of disbursements and HST were awarded with post-judgment interest from the date of the motion decision.
