Lazina Khan

Following the successful summary judgment motions by six third parties dismissing the third party claims against them, the court determined the costs to be awarded.

The defendants argued that costs for a prior summary judgment motion and an appeal should not be included.

The court found that the preparation for the prior motion and attendance at the appeal were incidental to the third party claims and awarded costs on a partial indemnity scale, rejecting a request for substantial indemnity costs.

The defendants in a personal injury action arising from a recreational tug-of-war game brought a third-party claim for contribution and indemnity against several other participants in the game.

Six of the third parties moved for summary judgment to dismiss the claim against them.

The court applied the Anns/Cooper test and found that the participants did not owe a duty of care to the plaintiff, as they did not organize the event, create the risk, or have a special relationship requiring them to take positive action to prevent injury.

The court granted the motions and dismissed the third-party claims.

Following the dismissal of the plaintiffs' personal injury action on summary judgment, the court determined the costs payable.

The defendants sought costs from the plaintiffs and argued the plaintiffs should also be liable for the costs of the third parties, whom the defendants had joined.

The court applied the general rule that an unsuccessful plaintiff is not responsible for the costs of third parties they did not sue, finding no exceptional circumstances to depart from this rule.

The plaintiffs were ordered to pay the defendants $44,000 in partial indemnity costs, while the defendants were ordered to pay the full costs claimed by the various third parties, totaling over $133,000.