Kenneth Ronald Clark

The Court allowed the appeal and held that an Internet service provider may recover reasonable costs required to comply with a Norwich order, but not costs tied to obligations already imposed by the statutory notice and notice regime under ss. 41.25 and 41.26 of the Copyright Act.

Because the record did not permit a proper allocation between recoverable and non-recoverable work, the matter was remitted to the motion judge to determine the reasonable quantum, with Rogers permitted to adduce fresh evidence.

The defendants sought leave to appeal an interlocutory order dismissing their summary judgment motion without prejudice and awarding costs to the plaintiff.

The motions judge had dismissed the motion after the defendants attempted to argue the merits of the case, contrary to a prior direction limiting the motion to limitation period and estoppel issues.

The defendants argued they were denied natural justice because the judge refused to release the audio recording of her oral reasons and failed to decide the limitation period issue.

The Divisional Court dismissed the motion for leave to appeal, finding no reasonable apprehension of bias and concluding that the motions judge properly intervened when the defendants attempted to ambush the plaintiff.

The plaintiff brought a motion for partial summary judgment alleging breach of the Copyright Act regarding marketing materials for a residential development.

During argument, the plaintiff realized its legal position was flawed and abandoned the motion.

The defendant sought costs of $34,719 on a substantial indemnity basis, while the plaintiff suggested $6,000.

The court found the motion was peripheral to the main action, unnecessary, and caused significant delay, bordering on an abuse of process.

Applying Rule 20.06, the court awarded the defendant costs on a substantial indemnity basis, fixed at $29,719.12.

The moving defendants sought costs of a motion following reasons previously released awarding them costs of a discontinued action but not addressing the motion itself.

The responding plaintiff argued that the absence of a costs provision meant no costs were payable and that the court was functus officio.

The court rejected both arguments, holding that because no formal order had yet been issued and entered, the court retained jurisdiction to address costs.

Applying the principles of proportionality under Rule 1.04(1.1) and the cost factors under Rule 57.01(1) of the Rules of Civil Procedure, the court reduced the claimed amount and fixed enhanced costs at $8,000 payable by the plaintiff.

The moving defendants sought costs after the plaintiff discontinued a defamation action arising from online criticism of a municipal mayor during an election campaign.

The court considered whether the action constituted Strategic Litigation Against Public Participation (SLAPP).

Based on the timing of the action, the absence of a demand letter, the use of a notice of action without a statement of claim, and the plaintiff’s failure to provide evidence explaining the litigation, the court inferred that the proceeding was intended to silence political critics.

Exercising discretion under Rule 23.05(1) of the Rules of Civil Procedure, the court held that the defendants were successful parties following discontinuance and were entitled to costs.

Enhanced costs were awarded due to the SLAPP nature of the litigation.