Jessica Silverman

Following a successful trial where the plaintiff recovered a $1.5M fee and defeated a counterclaim, the plaintiff sought costs of $680,152.55.

The defendant argued the plaintiff's offer to settle was served 1.5 hours late and thus did not trigger the mandatory cost consequences of Rule 49.10.

The court applied a holistic approach under Rule 49.13, finding the offer provided adequate time to assess risk in an all-or-nothing case.

The court exercised its residual discretion and awarded the plaintiff its requested costs.

The case involved a claim by Scotia Capital Inc. against Aphria Inc. for an "Independence Fee" under an engagement letter for financial advisory services in defending a hostile takeover bid, and a counterclaim by Aphria for defamation related to Scotia's discontinuation of analyst coverage.

The court found that Scotia successfully defended Aphria against the takeover bid, entitling it to the Independence Fee.

The court dismissed Aphria's defense arguments of lack of causality and repudiation.

The court also dismissed Aphria's counterclaim for defamation, finding no evidence that the discontinuation of coverage lowered Aphria's reputation or caused economic loss.