M. Arnold

Following the dismissal of the applicant's case, the court determined the issue of costs.

The respondent sought costs of up to $53,102.09 on a substantial indemnity basis, noting a Rule 49 offer to settle.

The applicant argued for no costs due to the novelty of the case and financial hardship.

The court rejected the novelty argument but acknowledged the applicant's hardship, fixing costs at $27,500 inclusive of disbursements and HST.

The plaintiff sought full indemnity costs of $58,030 against the defendants (indemnitors) following a successful motion, relying on a lease provision.

The responding indemnitor argued the lease provision applied only to the tenant, not the indemnitors.

The court agreed, finding no basis for full indemnity costs against the indemnitors and noting issues with the plaintiff's dockets.

The court awarded partial indemnity costs, reducing the claimed fees for a second counsel's attendance and reducing disbursements for lack of particularity, fixing total costs at $28,815.28.

The plaintiff landlord brought a summary judgment motion against four indemnitors of a commercial lease.

The indemnitors argued they were released from their obligations because the tenant had not been in 'habitual default' during the first three years, and alternatively, that the landlord waived prior defaults in an assignment agreement.

The court found that repeated late payments of rent constituted habitual default, preserving the indemnities.

The court also rejected arguments of waiver, failure to mitigate damages, and non est factum raised by one indemnitor.

Summary judgment was granted in favour of the landlord for $239,052.33.