Joshua David Hemmings

This costs endorsement addresses the entitlement and quantum of costs following a successful motion by the defendant.

The court considers the timing of the defendant’s costs submissions, the scale of costs (partial vs. substantial indemnity), the effect of offers to settle, and the conduct of the parties.

The court ultimately awards the defendant $20,490 in costs, finding no basis for a higher scale and that the amount is reasonable and proportionate.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

The appellant sought leave to amend his statement of claim to correct a misnomer by substituting the proper defendant after the expiry of the limitation period.

The motion judge refused the amendment.

The Court of Appeal allowed the appeal, finding that the appellant satisfied the "litigation finger test" for misnomer established in Lloyd v. Clark.

The appellant knew the proper defendant but failed to sue the proper party, and the intended defendant knew it was the intended defendant before the limitation period expired.

The court granted leave to amend and awarded costs.