H. MacDonald

After a trial concerning a commercial lease dispute, the plaintiff municipality obtained judgment for damages and the defendant’s substantial counterclaim was dismissed.

The court addressed the issue of costs following written submissions from the plaintiff and no submissions from the defendant.

The court considered the discretion under s. 131 of the Courts of Justice Act, the proportionality principle, and the effect of Rule 76 of the Rules of Civil Procedure regarding simplified procedure.

Although the plaintiff sought more than $68,000 in partial indemnity costs, the court held that the amount was disproportionate to the recovery and complexity of the case.

The court fixed costs at $40,000 inclusive of HST and disbursements.

Following a trial where the defendants were ordered to repay $25,000 to the plaintiff estate, the defendants declared bankruptcy.

The plaintiff sought a declaration that the debt survived the bankruptcy under section 178(1) of the Bankruptcy and Insolvency Act.

The court found it had jurisdiction to hear the matter as no formal order had been entered.

The court held that the defendants were acting in a fiduciary capacity when they held the deceased's money and that their failure to return it constituted misappropriation under s. 178(1)(d).

The debt therefore survived the bankruptcy.

Costs were awarded to the plaintiff on a substantial indemnity basis in the amount of $43,249.62.