David Decker

The moving defendants brought motions to dismiss the plaintiff's action for delay and failure to comply with court orders, and for summary judgment on a counterclaim.

The plaintiff and the defendant by counterclaim failed to file any responding material and did not have counsel appear.

The court granted the motions, dismissing the action, granting summary judgment on the counterclaim for $750,000, and awarding costs against the plaintiff and the defendant by counterclaim jointly and severally due to their abuse of process and delay.

Following earlier reasons on multiple discovery-related motions, the court was required to determine the quantum of costs payable.

The defendants had been largely successful on the underlying refusals and undertakings motion and sought over $70,000 in costs.

The court considered the principles under Rule 57 of the Rules of Civil Procedure and the discretion under s. 131 of the Courts of Justice Act, including the complexity of the proceeding, the conduct of the parties, and settlement offers exchanged prior to the motion.

Concluding that the claimed amount was excessive and that the litigation had already consumed disproportionate time and resources, the court adopted a broad‑strokes approach to fixing costs.

Net costs were fixed in a significantly reduced amount payable by the plaintiff.