Gabrielle Kimberly Kramer

This decision addresses costs following a successful application by Fela Grunwald and a dismissed application by Edwin Le Marchant and Laura Fiset concerning a right-of-way agreement.

Grunwald sought substantial indemnity costs of $97,459.25 or partial indemnity costs of $80,603.86.

The Le Marchants proposed $43,035.

The court awarded Grunwald $66,000, all inclusive, on a partial indemnity basis.

The court found that while the Le Marchants' arguments were without merit, their conduct did not warrant punitive substantial indemnity costs.

The decision emphasizes that costs generally follow the event on a partial indemnity scale, guided by the principles of indemnification, reasonable expectations of the unsuccessful litigant, and overall reasonableness under Rule 57.01(1) of the Rules of Civil Procedure.

The appellant purchased a home constructed by the respondent in 1997.

Mould was discovered in 2002 due to faulty construction and water leakage.

The mould was remedied and the house was sold without loss in value.

The appellant claimed damages for psychological and emotional injuries and out-of-pocket expenses.

The motion judge dismissed the action, finding the psychological injuries were too remote and not reasonably foreseeable.

The appellant appealed, arguing the motion judge erred in dismissing the claims for psychological and emotional injuries and that the contractual warranty limitations were irrelevant to the negligence claim.

The Court of Appeal upheld the dismissal, finding the motion judge properly applied the test from Mustapha v. Culligan and correctly concluded that a person of ordinary fortitude would not have suffered the serious psychiatric injury claimed in these circumstances.

Following a seven‑day civil trial concerning a prescriptive easement and negligent misrepresentation regarding a shared waterline, the successful plaintiff sought costs exceeding $300,000 after obtaining a declaration that no easement existed and damages of $25,500 against one defendant.

The court held that the plaintiff was entitled to costs as the successful party and that her Rule 49 offer justified partial indemnity costs up to the offer date and substantial indemnity costs thereafter.

However, the court found the claimed fees and disbursements excessive and disproportionate to the result achieved, particularly given the plaintiff’s unsuccessful fraud and punitive damages claims and the large damages claim that was not proven.

Exercising discretion under Rule 57, the court reduced the fees by approximately 50% and disallowed certain expert and research disbursements.

Costs were allocated between the defendants in proportion to their responsibility for the issues at trial.