Diane Evans

Following trial, the successful plaintiff sought elevated costs on a full indemnity basis, alleging reprehensible conduct by the defendant including theft from his employer and litigation conduct that required strict proof and additional legal research.

The court held that while costs are discretionary, they must be fixed on a principled basis and guided primarily by reasonableness under Rule 57 of the Rules of Civil Procedure.

The court declined to award elevated or full indemnity costs, noting the defendant had already been sanctioned through criminal proceedings and had limited financial means.

Considering proportionality, access to justice concerns, and the modest scale of the litigation, the court fixed costs at $25,000 rather than the $44,874.55 sought.

The plaintiff employer brought a civil action against a former employee alleging conversion, fraud, and breach of fiduciary duty arising from systematic theft of store funds through manipulation of cash register void transactions.

The defendant had previously pleaded guilty to a criminal theft charge and paid partial restitution.

The court accepted the employer’s statistical analysis of business records showing excessive void transactions and found, on a balance of probabilities, that the defendant misappropriated $70,699.93.

The court further held the defendant occupied a position of trust as a night manager and therefore acted in a fiduciary capacity.

Judgment was granted for damages and a declaration that the debt arose from fraud while acting in a fiduciary capacity under the Bankruptcy and Insolvency Act and would survive bankruptcy; punitive damages were refused.