David G. Boghgosian

This is a costs endorsement following an appeal where the appellant, Everest Finance Corporation, successfully varied the judgment below to increase awarded amounts.

The appellant sought full indemnity costs of $15,187.15 based on a mortgage term.

The respondents did not file submissions.

The Court of Appeal granted the full indemnity costs, affirming that contractual provisions for costs actually expended are generally enforced absent misconduct or unfairness.

Everest Finance Corporation appealed a motion judge's decision that, while granting summary judgment for mortgage arrears, reduced the amount of interest and costs owed by the respondents.

The motion judge had reduced the interest arrears from $63,010.50 to $20,000 and costs from $34,846.85 to $20,000, attributing the reduction to delays caused by the COVID-19 pandemic and exercising discretion.

The Court of Appeal found no legal basis for a court to reduce contractual interest or full indemnity costs due to court system delays or a general sense of fairness, stating that judicial discretion in costs does not extend to altering contractual terms.

The appeal was allowed, and the judgment was varied to restore the full amounts of interest and costs sought by the appellant.