In a costs decision following dismissal of a negligent misrepresentation action as statute-barred and dismissal of the defendants' counterclaim, the court held the defendants were the successful parties in the main action and presumptively entitled to costs, while the plaintiffs were separately entitled to costs of defending the counterclaim.
The court rejected substantial indemnity costs based on allegations in the pleadings and on a purportedly favourable Rule 49 offer because the offer required an overly broad release and also included the counterclaim, making comparison with the judgment impossible.
Applying the Rule 57 factors, the court fixed the defendants' fees on a partial indemnity basis and allowed full disbursements, including expert disbursements for experts not called where the reports were reasonably necessary.
The plaintiffs were awarded a discrete amount for the counterclaim.
