M. Maurer

Following a successful motion for leave to amend a statement of defence and counterclaim, the moving party sought substantial indemnity costs.

The opposing party had argued the amendments were statute-barred and legally untenable.

The court held that substantial indemnity costs are reserved for rare cases involving reprehensible conduct or where an offer to settle justifies such an award, neither of which was present.

Applying the factors under Rule 57.01 and s.131 of the Courts of Justice Act, the court fixed costs on a partial indemnity basis and reduced the claimed time by disallowing duplicative counsel time.

Costs of $5,000 plus disbursements and HST were awarded.

The plaintiff sought damages for the defendant's interference with a right-of-way over the defendant's property, which provided access to the plaintiff's parking lot.

The defendant constructed a hotel that reduced the width and height of the right-of-way, preventing front-end loader garbage collection and reducing parking capacity.

The court found the permanent structure constituted an actionable interference with the express grant of the easement.

The plaintiff was awarded $441,400 in damages for loss of rental income, reduction in property value, and costs to re-grade the parking lot.

Following dismissal of the defendants’ motion for summary judgment, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs on the basis that the motion was unreasonable, while the defendants argued for a reduced partial indemnity award and challenged several disbursements.

The court held that the motion was not unreasonable or brought in bad faith and declined to award substantial indemnity costs under Rule 20.06.

Costs were limited to steps taken after the plaintiffs amended their claim to include fraud-related allegations, which ultimately led to their success on the motion.

The court excluded the plaintiffs’ expert fee and certain other disbursements, and fixed partial indemnity costs at $30,000 inclusive of disbursements and taxes.

The defendants brought a motion for summary judgment on their counterclaim for the balance of the purchase price under a share purchase agreement and to dismiss the plaintiffs' action.

The plaintiffs alleged fraudulent misrepresentation regarding the financial position of the purchased company and sought rescission.

The court found that there was some evidence to support the plaintiffs' claims and that issues of credibility and fact, particularly regarding when the plaintiffs became aware of the alleged fraud and whether they affirmed the contract, required a full trial.

The motion for summary judgment was dismissed.