Jason D. Singer

The defendant, TD Home and Auto Insurance Company, sought full indemnity costs of over $600,000 after successfully defending a breach of contract claim (arson defence) and succeeding on a counterclaim in a three-week jury trial.

The plaintiff, Nazir Azami, conceded costs but argued the amount was excessive and should be on a partial indemnity scale.

The court, applying Rule 57.01(1) of the Rules of Civil Procedure, found that substantial indemnity costs were warranted due to the plaintiff's deceitful conduct and unfounded allegations of misconduct.

However, the court significantly reduced the claimed amount, finding the defendant's docketed hours (over 1,750 combined hours by six lawyers) and claimed disbursements (over $130,000) to be disproportionate and excessive.

The court also noted the defendant's conduct contributed unnecessarily to the trial's length.

Ultimately, the court ordered the plaintiff to pay the defendant's costs in the total amount of $211,500, inclusive of fees, disbursements, and HST.

The plaintiff appealed a Master's decision ordering him to post security for costs in the amounts of $60,000 for CanJet Airlines and $80,000 for 1791949 Ontario Limited (TGAS).

The appeal challenged the Master's findings on impecuniosity, the sufficiency of an adverse cost protection policy, and the plaintiff's chance of success.

The court upheld the Master's decision, finding no palpable and overriding error or misapprehension of evidence, and dismissed the appeal.