Cindy Dickinson

The parties sought clarification on whether the court's previous costs order, which declined to award costs due to a mixed result on summary judgment motions, also applied to the costs of defending a dismissed counterclaim.

The court issued an addendum clarifying that the previous order applied only to the summary judgment motions and established a timetable for written submissions regarding the costs of defending the counterclaim.

The plaintiffs moved for summary judgment on liability after a five-year-old child was severely injured by a riding lawnmower operated by the defendant neighbour.

The defendant had counterclaimed against the child's parents for negligent supervision.

The court granted partial summary judgment dismissing the counterclaim against the father, who was at work and unaware of the danger.

However, the court found genuine issues requiring a trial regarding the apportionment of liability between the defendant occupier and the mother, given conflicting evidence on the community standard of care for supervising children playing in neighbouring yards.

This supplementary endorsement addresses the costs of an unsuccessful motion for leave to appeal brought by the plaintiff.

The defendants, having been entirely successful, were presumptively entitled to costs on a partial indemnity basis.

The court found the amounts claimed by the defendants' counsel to be excessive for a straightforward leave to appeal motion heard in writing, particularly the time allocated for legal research and drafting.

The court significantly reduced the claimed costs, setting a cap for fees on such motions, and awarded specific amounts to each defendant group.