David L. Edwards

Following a successful summary judgment motion dismissing the plaintiffs’ action and granting judgment on the defendant’s counterclaim in a residential boundary dispute, the court determined the appropriate costs award.

The defendant had previously served an offer to settle dismissing the action with partial indemnity costs, which remained open and unaccepted.

The plaintiffs argued for partial indemnity costs and challenged the defendant counsel’s hourly rate, while the defendant sought substantial indemnity costs.

The court found the defendant was virtually completely successful and that the time spent and hourly rate were reasonable.

Balancing the factors under the Rules of Civil Procedure, the court awarded costs at a level slightly above partial indemnity but below substantial indemnity.

Following a consent order resolving a motion that sought to dismiss the respondent’s claim and strike his pleadings for failure to comply with a temporary order, the parties were unable to agree on costs.

The consent order provided that the respondent would pay the costs of the motion either as agreed or as ordered by the court.

The court considered the parties’ submissions, including allegations of non‑compliance with prior court orders, issues surrounding scheduling and counsel availability, and the existence of an offer to settle.

While satisfied that costs should be awarded to the applicant and that the claimed hourly rates and time spent were reasonable, the court declined to order full indemnity costs.

Costs were fixed at a lump sum of $4,500 inclusive.

Following a four-day family law trial regarding a motion to vary child support and a claim for child support from the other parent, both claims were dismissed and child support arrears were fixed.

The court considered the costs consequences under Rule 24 of the Family Law Rules.

The successful party sought full recovery costs alleging bad faith conduct including failure to provide disclosure, inaccurate financial statements, and unreasonable litigation conduct.

The court found no bad faith but concluded the responding party’s conduct and testimony unnecessarily prolonged the trial.

Costs were awarded in a reduced amount reflecting the successful party’s entitlement while excluding costs related to an earlier motion.

The applicant father brought a motion seeking increased parenting time with the child pending trial.

The respondent mother opposed any change to the existing interim consent order, arguing the current arrangement should remain until trial.

The court considered whether a change in circumstances was required before varying the interim order and distinguished prior authority because the consent order was made on a without prejudice basis pending further order of the court.

While the court declined to alter the child’s primary residence or grant the full access sought, it held that increased contact with the father was in the child’s best interests.

The court therefore ordered additional alternating weekend access and summer parenting time pending trial.

The plaintiff brought a motion to set aside a Registrar’s order dismissing the action as abandoned following prolonged delay in prosecuting a motor vehicle accident claim.

The court applied the contextual test from Scaini v. Prochnicki, considering explanation for delay, inadvertence in missing deadlines, promptness of the motion, and prejudice to the defendant.

The court found multiple unexplained delays in the litigation, including failures to provide basic documents to the defendant’s insurer and a lengthy delay before bringing the motion after the dismissal order.

The plaintiff’s explanations, including counsel’s health issues and a mislabeled file, were found insufficient and not credible in light of earlier delays.

The presumption of prejudice to the defendant was not rebutted.

The motion to set aside the dismissal order was dismissed.

Following the dismissal of the respondents’ motion, the court considered the applicant’s entitlement to costs.

The respondents argued that no costs should be awarded because the court determined it lacked jurisdiction to grant the relief sought in their motion.

The court rejected that submission and held that the applicant was completely successful and therefore entitled to costs.

Although the applicant sought costs on a substantial indemnity basis, the court found that the respondents’ conduct did not rise to the level required for such an award.

Costs were fixed at $6,800 payable forthwith.

The respondents brought a motion seeking to set aside earlier orders made by other judges of the Superior Court of Justice, including orders validating service, ordering contempt proceedings, and issuing garnishment.

The moving parties argued insufficient service, improper commencement of the proceeding by application under Rule 14.05(3), and lack of personal service for contempt proceedings.

The court held that it lacked jurisdiction to set aside or overrule orders made by other judges absent authority under the Rules of Civil Procedure.

The court further found that the moving parties failed to meet the requirements of Rule 38.01 and that full and fair disclosure had been made on the earlier motion.

The motion was dismissed.