Kevin Cooke

The appellants appealed a summary judgment dismissing their remaining claims for damages arising from the respondent municipality's enactment of a fill permit by-law and its unsuccessful prosecution of the appellants for breach of that by-law.

The appellants claimed malicious prosecution, misfeasance and abuse of public office, and damages from the invalid fee provisions.

The Court of Appeal upheld the summary judgment, finding no genuine issues requiring trial on any of the claims.

The respondent had reasonable and probable cause to initiate and continue the prosecution, and there was no evidence of bad faith or unlawful conduct in enacting the by-law.

Following the dismissal of the plaintiff's motion for the appointment of a receiver and an interlocutory injunction, the parties could not agree on costs.

The defendants sought costs on a substantial indemnity basis of $290,313.82, alleging improper conduct by the plaintiff.

The court found no reprehensible conduct warranting substantial indemnity costs.

Applying the factors under Rule 57.01, including the overriding principle of reasonableness and the defendants' divided success on their own motion, the court fixed costs payable by the plaintiff to the defendants at $120,000.