Following a judgment obtained after a defendant’s statement of defence was struck for failure to answer undertakings from an examination for discovery, the plaintiffs sought substantial indemnity costs exceeding $130,000.
The court considered the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness, reasonableness, and proportionality.
The court held that substantial indemnity costs were not justified because there had been no determination on the merits and no exceptional conduct warranting such a scale.
Several items in the bill of costs were disallowed or reduced, including motion-related costs already awarded, excessive hourly rates, and travel time billed at full rates.
Applying proportionality and reasonable expectations of the losing party, the court fixed costs at $45,000 inclusive of disbursements and HST.
