Martin Bufton

The plaintiffs brought a motion to validate service of a statement of claim on two defendants, or alternatively to extend the time for service.

The plaintiffs had failed to formally serve the defendants within the six-month deadline but had provided a courtesy copy to their counsel, and the defendants had notified their insurer.

The defendants argued they would be prejudiced because they had shredded old tenant files after the service deadline.

The Master found the defendants had notice of the claim well before shredding the files and thus created their own prejudice.

The motion was granted, service was validated, and the plaintiffs were awarded costs.

Following a two-day trial, the plaintiff succeeded on liability but recovered only $24,000, far below the $850,000 claimed and within Small Claims Court jurisdiction.

In this standalone costs endorsement, the court declined to award the plaintiff partial indemnity costs despite a more favourable judgment than his offer to settle, relying on proportionality, the disparity between the amount claimed and recovered, the parties' reasonable expectations after damages were fixed, and adverse credibility findings against the plaintiff.

The court also refused the defendants' request for costs because their evidence was likewise found purposely untruthful.

No costs were awarded to either side.