Following dismissal of an application seeking removal of a fence demarcating a right of way, the court determined the appropriate costs award.
The successful respondent sought substantial indemnity costs exceeding $30,000, arguing the applicant pursued untenable legal positions and rejected reasonable settlement offers.
The court held that while the respondent was entirely successful and entitled to costs, the case was not sufficiently exceptional to justify substantial indemnity costs.
Applying the principles of reasonableness under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the claimed amounts and fixed costs at a fair and reasonable level.