Graham R. Brown

Following the dismissal of the plaintiff's motion to amend its Statement of Claim, the successful defendant sought costs on a substantial indemnity basis relying on a provision in a construction bond.

The court declined to award substantial indemnity costs, finding it unduly onerous and noting that only one of the three proposed amendments related to the enforcement of the bond.

Applying the principle of proportionality and the factors under Rule 57.01, the court fixed costs on a partial indemnity basis at $12,000.

The appellant appealed the dismissal of its claim, arguing it only discovered its loss from a breach of duty to warn when an internal investigation report was disclosed in 2010.

The Court of Appeal dismissed the appeal, finding that the appellant knew the goods were stolen and that it had paid storage fees for missing goods by October 2006.

The court noted that knowing the full extent of damages is not required to trigger the limitation period under section 5 of the Limitations Act.

The appeal was dismissed with costs awarded to the respondent.