Alicia Minna Krausewitz

The court considered the allocation and quantum of costs following summary judgment in favour of Canadian Pacific Railway Company (CPR), where the third party, Canada Colors and Chemicals Limited (CCCL), sought costs from the plaintiff, 863880 Ontario Limited.

The court found that exceptional circumstances justified ordering the plaintiff to pay CCCL’s costs, but not the full amount claimed.

The court directed a revised calculation, holding the plaintiff responsible for half of CCCL’s reasonable costs up to the discontinuance of a related third party claim, and all reasonable costs thereafter, subject to a 20% reduction and further specific deductions.

This costs endorsement addresses the aftermath of a motion to strike the defendants’ statement of defence for failure to attend examinations for discovery.

The court had previously dismissed the motion to strike but awarded the plaintiffs partial costs thrown away.

The parties could not agree on costs, and both made written submissions.

The court ultimately found that, given the divided result and the defendants’ prior waiver of costs, each party should bear its own costs of the motion.

The Applicant, a dissenting shareholder, sought costs on a full indemnity basis after successfully obtaining an order fixing the fair value of his shares.

The court had previously ordered the Respondent to pay $63,000 for the shares.

The Applicant argued that the Respondent failed to comply with s. 185(15) of the Ontario Business Corporations Act (OBCA) by offering zero for the shares, which would trigger full indemnity costs under s. 185(21).

The court found that the Respondent's offer of zero, accompanied by an explanation, did comply with s. 185(15) and therefore, the costs consequences of s. 185(21) were not triggered.

The court awarded costs on a partial indemnity scale, fixing them at $99,951.75, after considering the factors in Rule 57.01 of the Rules of Civil Procedure, the complexity of the case, and the proportionality of the costs claimed relative to the amount at issue.