John P. O’Toole

Following a successful motion for summary judgment, the plaintiff sought costs on a substantial indemnity basis, relying on two offers to settle.

The defendants argued costs should be payable in the cause or fixed on a partial indemnity basis.

The court found the plaintiff was not entitled to substantial indemnity costs because the first offer had expired and the judgment did not meet or exceed the second offer's terms.

Applying the principle that costs must be fair and reasonable, the court awarded the plaintiff partial indemnity costs fixed at $65,000, inclusive of disbursements, payable forthwith.

The plaintiff brought a motion for summary judgment against the corporate defendant for amounts owing under commercial equipment leases and against the remaining defendants under unconditional guarantees.

The defendants argued there was no valid assignment of the leases, raised credibility issues, and claimed the plaintiff fundamentally breached the leases by providing defective equipment, thereby invalidating the exclusion clauses.

Applying the Tercon framework, the court enforced the exclusion clauses and found no genuine issue requiring a trial.

Summary judgment was granted for over $2.2 million against the corporate defendant and $500,000 against the guarantors, but execution was stayed pending the resolution of the defendants' counterclaim.

Following the dismissal of summary judgment motions brought by the defendants, the plaintiff sought costs on a partial indemnity basis for successfully defending the motions.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, complexity, proportionality, and the conduct of the parties.

While the defendants’ motions were brought reasonably and with the objective of shortening the proceedings, the plaintiff was substantially successful in resisting them, though some issues remained for trial.

The court concluded that costs should be fixed immediately rather than deferred to the trial judge.

Costs were awarded to the plaintiff on a partial indemnity basis.

The defendants brought motions for summary judgment to dismiss the plaintiff's action regarding a right of first refusal on a quarry property.

The plaintiff had operated the quarry under a 1991 agreement that expired in 2006, but continued to pay rent.

The court found the agreement was a lease that renewed on a year-to-year basis.

However, the court held that whether the right of first refusal also renewed, and whether a binding agreement of purchase and sale was formed, were genuine issues requiring a trial.

The defendants' motions for summary judgment were dismissed and an expedited trial was ordered.

Following a successful Rule 21 motion striking a statement of claim for disclosing no reasonable cause of action, the court determined the appropriate scale and quantum of costs.

The moving defendants sought substantial indemnity costs, arguing that the proceeding duplicated existing litigation and required significant effort to defend.

The court held that elevated costs are generally justified only where Rule 49 offers to settle apply or where the losing party’s conduct warrants sanction.

Finding no such circumstances, the court awarded costs on a partial indemnity basis and reduced the claimed amount after considering proportionality and the reasonableness of more than 240 hours billed for a two‑day motion.