Court File and Parties

COURT FILE NO.: CV-11-44096 DATE: 20220426 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S & A DEVELOPMENTS LIMITED, ALEXANDER STRASSER and CAMPUS 2000 DEVELOPMENTS INC. personally and as general partner of 1162185 LIMITED PARTNERSHIP

AND:

HENRY H. N. HUNG and DANIEL H. C. HUNG as trustees of THE HUNG RICHMOND HILL TRUST, SHIU PONG DEVELOPMENTS LIMITED, SHIU PONG ENTERPRISES (CANADA) LIMITED and SHIU PONG CONSTRUCTION LTD.

AND RE: HENRY H. N. HUNG and DANIEL H. C. HUNG as trustees of THE HUNG RICHMOND HILL TRUST, SHIU PONG DEVELOPMENTS LIMITED, SHIU PONG ENTERPRISES (CANADA) LIMITED and SHIU PONG CONSTRUCTION LTD.

AND:

S & A DEVELOPMENTS LIMITED, ALEXANDER STRASSER, S & A STRASSER LIMITED, JOHN DOE, JIM DOE and JOE DOE

BEFORE: VERMETTE J.

COUNSEL: Paul Dollak, for the Plaintiffs and Defendants to the Counterclaim William Chalmers, for the Defendants and Plaintiffs by Counterclaim

HEARD: In writing

Endorsement as to Costs

[1] On February 23, 2022, I released Reasons for Judgment dismissing both the Plaintiffs’ claim and the Defendants’ counterclaim (2022 ONSC 1235). The parties were not able to agree on costs and have delivered costs submissions.

1. Additional relevant facts

a. First trial before Stinson J.

[2] The trial before me was the second trial in this action. The first trial, which was not completed, took place before Justice Stinson over seven days in February 2018. The trial was adjourned on February 16, 2018. Justice Stinson wrote the following endorsement on that day:

The trial of this action commenced before me on 5 February 2018 and continued, intermittently, until today. Due to the discovery and disclosure of additional information by the plaintiffs the trial could not continue today and had to be adjourned. A case conference with me to address the next steps in the proceeding shall be scheduled by counsel, through my assistant, once counsel are in a position to propose a suitable course of action. […]

[3] On April 30, 2018, Justice Stinson made another endorsement which stated that the Plaintiffs wished to bring a motion seeking the withdrawal of admissions. Justice Stinson directed that, in addition to the withdrawal of the admissions, the Plaintiffs’ motion was to seek leave to: (a) bring the motion, (b) reopen the Plaintiffs’ case, and (c) rely on specified documents not previously produced or disclosed. Justice Stinson wrote that the Defendants could serve a cross-motion seeking a mistrial or such other relief as they considered appropriate. He also established a timetable for the motions.

[4] On January 14, 2019, Justice Stinson signed an order on consent granting leave to the Plaintiffs to withdraw certain admissions and declaring a mistrial. His order also included the following paragraphs:

3. THIS COURT ORDER [sic] that the Hung Parties and the Strasser Parties shall, within 21 days, attempt to reach an agreement regarding the use of the evidence from the Trial (the “Evidence Issues”). If the Parties cannot agree in this regard, Justice Stinson shall adjudicate the Evidence Issues on a motion returnable on a date set by Justice Stinson.

4. THIS COURT ORDERS that the costs of the Trial, the costs associated with and arising from the mistrial, the costs of the Strasser Parties’ Motion, the costs of the Hung Parties’ Motion and the costs of the Motion [i.e. motion for mistrial] are reserved to the judge hearing the Second Trial.

[5] On January 16, 2019, Justice Stinson released an endorsement (2019 ONSC 433), which reads as follows:

[1] This endorsement follows an attendance by counsel before me on January 14, 2019. On that date I signed a consent order. The purpose of this endorsement is to set out the background to that order, to explain the basis upon which it was made, and to provide my directions concerning the future course of these proceedings.

[2] The order disposed of a motion brought by the plaintiffs in this action (to whom I shall refer in the singular, since their interests are identical). The motion sought the withdrawal of admissions made in a pleading, admissions in a response to a request to admit and admissions in an agreed statement of facts. It also sought leave to rely on certain documents provided in a supplementary affidavit of documents.

[3] The plaintiff’s motion was brought mid-trial after the close of the plaintiff's case, but before the defendant had called any evidence. The reason for the timing of the motion was that only at that point did plaintiff's trial counsel (not Ms. Lei) discover that the case he had put in was based on a mistake as to a significant fact. Having discovered that mistake, he brought it to the court's attention and the trial was adjourned to allow the situation to be evaluated by both sides. Independent counsel was engaged by the plaintiff to deal with the problem and this motion followed.

[4] The defendant (to whom I shall also refer in the singular since all defendants are allied) opposed the plaintiff’s motion, citing prejudice to its position due to the lateness of the plaintiff's change of position. The defendant also brought a cross-motion for a mistrial in the event the relief sought by the plaintiff was granted.

The lawsuit

[7] The plaintiff is the party who brought the land to the joint venture. It had assembled the land by way of a series of transactions over a period of years. Those transactions were documented in a series of complex agreements containing schedules and legal descriptions. At the pre-trial stages of the lawsuit, there was apparently no dispute over which lands the plaintiff contributed to the joint venture. What was disputed was whether the land kept by the plaintiff following the dissolution of the joint venture was incorrectly valued and, if so, whether the plaintiff could re-open the dissolution transaction and seek repayment of the excess payment made to the defendant.

The mistake

[8] The problem that resulted in the present motions relates to the correct legal description of the lands that the plaintiff brought to the joint venture. More specifically, the problem that arose mid-trial is that, in a series of steps in the litigation, the lands brought to the joint venture were incompletely or inaccurately described. Unaware of the inaccurate and incomplete legal descriptions, the plaintiff confirmed as correct the references to the lands contained in the pleadings, requests to admit and an agreed statement of facts. It now turns out that those descriptions wrongly excluded some of the lands brought into the joint venture by the plaintiff.

[9] The trial began on February 5, 2018 and continued sporadically on February 9, 12, 13, 14, 15 and 16, 2018. One of the reasons for the sporadic progress of the trial was that at the outset of the trial, as the trial judge, I questioned the plaintiff’s trial counsel regarding the accuracy of the legal description of the lands brought into the joint venture by the plaintiff. I did so because I was having difficulty understanding and reconciling the legal descriptions, the agreements and the plans contained in the materials before me, including the pleadings, the response to the request to admit, and the agreed facts and books of documents. Plaintiff’s trial counsel was unable to resolve my difficulties, despite being granted time to do so. He ultimately (incorrectly, as it later turned out) confirmed that the pleadings, response to request to admit and agreed facts contained the correct legal description of the lands brought to the joint venture by the plaintiff.

[10] The trial proceeded through the plaintiff’s case based on that erroneous belief. Most importantly, Alex Strasser, the plaintiff’s principal witness, was examined and cross-examined against the backdrop of this erroneous information. He was unable to recall the details of the land assembly process that resulted in him controlling all of the lands. This was perhaps understandable, since these events took place in the early 1980s and they did not appear to be contentious at the trial. Nevertheless, the timing and circumstances of the land acquisition by the plaintiff do bear on the question whether they were subject to further land development charges. Mr. Strasser’s answers (or his inability to answer them or to explain the acquisition process) had an impact on my overall assessment of his evidence.

[11] Only after Mr. Strasser had been examined and cross-examined and the plaintiff’s case was closed, did plaintiff’s trial counsel discover that the legal description he had believed to be accurate, was indeed erroneous. He felt obliged to draw this error to the court’s attention, because it meant that the case he had lead [sic] and the examination and cross-examination of his client, had proceeded on a faulty premise, namely, the erroneous legal descriptions of the lands brought to the joint venture by the plaintiff as described in the pleadings, response to request to admit, and the agreed statement of facts.

[12] That the legal descriptions of the lands were erroneous was determined through further title searches conducted, documents obtained and surveyors consulted during the course of the trial. It was only once that information was assembled that the error in the admissions was brought to light. At that point the trial was adjourned indefinitely.

The motions and the consent order

[13] In light of the late discovery of the true state of affairs, once independent counsel for the plaintiff was engaged, the plaintiff brought the motion to withdraw the erroneous admissions, based on the fact that they do not accord with the truth. The motion also sought leave to rely on the late-assembled documentation and information.

[14] The defendant opposed the relief sought. The defendant also brought a cross-motion for a mistrial in the event the relief sought by the plaintiff was granted.

[15] Ultimately, the parties agreed to resolve their motions on the basis of the consent order that was presented to me for signature on January 14, 2019. That order provides as follows:

1. for the withdrawal of the inadvertent admissions;
2. for the declaration of a mistrial in connection with the trial before me;
3. for the lawyers to meet and attempt to reach agreement regarding the potential use at the new trial of the evidence that was presented before me, and if agreement cannot be reached for me to adjudicate the evidence issues;
4. for the second trial to be heard as quickly as possible following the resolution of the evidence issues; and
5. for all costs questions to be reserved to the judge who hears the second trial.

[17] In relation to Item 3 (the proposed method to make use of some of the evidence from the first trial at the second trial), I suggested to counsel that they agree on uncontested facts to form the foundation for the new trial. With respect to the proposal that I be called upon to adjudicate unresolved evidence issues, I pointed out that since I would not be presiding at the new trial I could not bind the judge at that trial in relation to what evidence could or could not be admitted then. Nonetheless, I told counsel that I would be willing, by way of case conference, to assist them in arriving at a consensus regarding the future use of previous evidence or the topics to be included in an agreement as to uncontested facts, in order to facilitate the most efficient presentation of the case at the new trial.

[6] There is no evidence before me that the parties sought the help of Justice Stinson at any time after January 16, 2019 with respect to the use of previous evidence during the second trial.

b. Offers to settle

[7] On December 18, 2017, the Defendants made an offer to settle under Rule 49 of the Rules of Civil Procedure. The offer was that the claim and the counterclaim would be dismissed and that the Plaintiffs would pay to the Defendants their costs on a partial indemnity basis to the date of the acceptance of the offer to settle, less $5,000.00. The offer expired one minute after the commencement of the trial.

[8] An identical offer was made by the Defendants on February 14, 2019, after the mistrial was declared.

c. Defendants’ Request to admit

[9] On July 29, 2019, after the first trial, the Defendants served on the Plaintiffs a Request to Admit that contained 485 entries. On August 15, 2019, the Plaintiffs served a Response to Request to Admit in which they refused to admit the truth of any of the facts set out in the Request to Admit. A number of reasons were given in support of this refusal, including the following:

to the extent that each of the facts asserted has been extracted from the previous trial testimony of Alexander Strasser, it has been extracted with paraphrasing, nuance, characterization, and organization that is contrary and prejudicial to his own nuances and characterizations of the various facts asserted, and therefore is being asserted in a way that is generally prejudicial to the plaintiff’s right to present their case at trial in a manner that would assist the trial judge in understanding the theory of their case and the relief they are seeking to assist the judge in making a fair and just decision; […]

2. Positions of the parties

a. Position of the Defendants and Plaintiffs by Counterclaim

[10] The Defendants claim costs thrown away in relation to the first trial before Justice Stinson and their costs of the action (including the trial before me) in the total amount of $748,735.25.

[11] With respect to the first trial, it is the Defendants’ position that the mistrial was due solely to the mistake of the Plaintiffs’ counsel and Mr. Strasser himself. The Defendants argue that because the Plaintiffs’ counsel refused to admit any of the facts set out in the Defendants’ Request to Admit dated July 29, 2019, the costs of the first trial were thrown away and the Defendants are entitled to reimbursement of those costs on a full indemnity basis ($282,040.09) or, alternatively, on a substantial indemnity basis ($253,836.08).

[12] In addition to the costs thrown away from the first trial, the Defendants claim costs of the proceeding on a partial indemnity basis up to the mistrial ($198,275.17) and on a substantial indemnity basis onwards ($233,337.43), including the second trial. They also claim disbursements of $35,082.56.

[13] The Defendants submit that by virtue of Rules 49.13 and 57.01(4) of the Rules of Civil Procedure and section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court is entitled to take into account the Defendants’ offer to settle made on February 14, 2019 in support of the Defendants’ claim for substantial indemnity costs from the mistrial onwards. While the Defendants acknowledge the appellate case law which requires a clear finding of reprehensible conduct to justify an award of elevated costs, they argue, based on a number of cases, that elevated costs can be ordered where the proceeding is found to be devoid of merit or where a party unnecessarily increased the costs of litigating. They state the following in their submissions:

The Plaintiffs were utterly unsuccessful and obtained no judgment whatsoever. Their case was, in that respect, devoid of merit, albeit not “wholly devoid of merit”. The Defendants have been put through two trials, and by refusing to admit any of the evidence of Alexander Strasser from the first trial, the Plaintiffs unnecessarily increased the costs of litigating the second trial. These facts, together with the Defendants’ offer to settle, create one of those rare and exceptional circumstances where elevated costs should be ordered from the date of the Defendants’ February 14, 2019, offer.

[14] The Defendants submit that the rates charged by the Defendants’ counsel are commensurate with those found to be appropriate in similar circumstances. They point out that the Plaintiffs’ legal team spent 342.9 more hours on the matter than the Defendants’ legal team and argue that, in the circumstances, there is no basis to “second guess” the time spent by the Defendants’ lawyers or to conclude that the matter has been over-lawyered.

b. Position of the Plaintiffs and Defendants to the Counterclaim

[15] The Plaintiffs agree that the costs of the action should follow the result, but do not agree with the scale claimed by the Defendants nor the amounts claimed without some deductions. In the Plaintiffs’ view, the Defendants should be awarded no more than $280,155.95 for their costs on a partial indemnity scale.

[16] The Plaintiffs submit that deductions should be applied to the Defendants’ costs in connection to two stages of the proceeding:

a. a removal motion brought by the Plaintiffs in 2014 to remove Aird & Berlis LLP as lawyers of record for the Defendants because the firm had acted jointly for the Defendants and the Plaintiffs during material times in dispute and it appeared that relevant documents connected with that joint representation had not been produced; and b. the first trial and the motion that brought it to an end.

[17] With respect to the removal motion, the Plaintiffs state that in the lead up of the motion, it was agreed that Mr. Strasser would attend at the offices of Aird & Berlis LLP to review the files of Edmund Smith for relevant documents. After Mr. Strasser reviewed the files and found the memorandum referred to in paragraph 48 of my Reasons for Judgment, the removal motion settled, and it was agreed that the costs of the motion would be reserved to the trial judge. The Plaintiffs argue that the memorandum “was a smoking gun in respect of the factual question of the Defendants’ knowledge of issues and concerns related to pre-paid development charges.” They state that had they won the lawsuit, they would have asked that they be awarded the costs of the removal motion, but since they did not win, they ask instead that the Defendants not be awarded any costs connected to this motion.

[18] With respect to the first trial, it is the Plaintiffs’ position that the Defendants should not be awarded any costs in connection with the first trial and the motion to withdraw admissions. The Plaintiffs argue that the Defendants incorrectly assert that the costs related to the motion to withdraw admissions and the mistrial occurred solely due to an admission of fact mistakenly made by the Plaintiffs. According to the Plaintiffs, the mistake originated with the Defendants’ erroneous legal descriptions of the lands brought into the joint venture in their pleading. The Plaintiffs state the following in their submissions:

The mistake itself was inconsequential and the withdrawal of the inadvertent admission to correct the record was appropriate in the circumstances. The Defendants’ response was disproportionate and instead of forcing a motion on the issue, the Defendants ought to have simply conceded that the allegation in their pleading was wrong. Had they done so or, alternatively, had they never made the incorrect assertion at all, both sides would have been spared significant costs.

[19] The Plaintiffs further submit that a reduction should be applied more generally “due to the tendency towards prolixity and complications reflected in various aspects of the Defendants’ conduct during these proceedings”. They argue that the Defendants’ counsel frequently engaged in tactics that seemed to include raising every conceivable argument and issue and, in the process, served documents of extraordinary and uncalled-for length and complexity. They state that counsel for the Plaintiffs had to spend more time on various aspects of this case than would have been necessary had the Defendants proceeded in a more reasonable manner.

[20] The Plaintiffs also point out that the Defendants’ counterclaim was dismissed. They state that while the Defendants asserted that the counterclaim was only relevant if the Plaintiffs’ claim succeeded, that assertion/concession came very late in the day, at the time of the closing submissions. According to the Plaintiffs, the counterclaim only complicated the matter unnecessarily throughout the action and the Plaintiffs prevailed to the extent that it was dismissed.

[21] The Plaintiffs state that the Defendants’ position that full or substantial indemnity costs ought to be awarded to the Defendants for any aspect of the proceeding is without merit. The Plaintiffs rely on the general jurisprudence that requires a clear finding of reprehensible conduct in order to justify elevated costs. The Plaintiffs also point out that this Court found in favour of the Plaintiffs on every issue where the testimony of Mr. Strasser and the testimony of the Defendants were in conflict.

[22] Finally, the Plaintiffs highlight the fact that the Defendants’ costs, no matter the scale claimed, greatly exceed the costs set out in the Plaintiffs’ bill of costs which are in the total amount of $374,333.70 on a partial indemnity basis.

3. Discussion

a. Costs thrown away

[23] In the context of this case, costs thrown away refer to costs for trial preparation which have been wasted as a result of the adjournment of the trial and will be of no use in the second trial. Costs thrown away are generally payable on a full indemnity basis by the party who is responsible for the adjournment, whether or not there is fault on their part. The purpose of an award of costs thrown away is not to punish the party responsible for the adjournment, but to indemnify the other party for the wasted time for trial preparation arising from the adjournment. See Caldwell v. Caldwell, 2015 ONSC 7715 at paras. 8-11 (“Caldwell”).

[24] When the court is asked to order costs thrown away, its task is to determine what costs have actually been wasted. Not all preparation is considered to be costs thrown away because some of the preparation will inevitably be of use in the second trial. See Caldwell at para. 12 and Legacy Leather International Inc. v. Ward at para. 9 (Ont. S.C.J.) (“Legacy Leather”).

[25] In my view, based on the endorsements of Justice Stinson, the Plaintiffs are responsible for the adjournment of the first trial. While the Defendants may have been able to discover the mistake themselves, the Plaintiffs are the ones who made the admissions, initially confirmed their accuracy to Justice Stinson, and had additional documents to produce. As a result, I conclude that the Plaintiffs should pay the Defendants’ costs thrown away with respect to the first trial on a full indemnity basis.

[26] However, I do not agree that the Defendants are entitled to the full amount of costs thrown away that they are claiming. It was the Defendants’ onus to identify which costs were thrown away and to show that those steps had been rendered useless by the mistrial: see Legacy Leather at para. 19. They have failed to discharge this onus with respect to a large portion of the alleged costs thrown away. For instance, it was obvious at trial that: (a) both the Defendants and the Plaintiffs reused briefs of documents that were prepared for the first trial; and (b) counsel for the Defendants reused his outline of cross-examination questions for Mr. Strasser. Further, many of the items included in the Defendants’ bill of costs under “Trial Preparation, Issues for Trial, etc. [First Trial]” are items that were not completely wasted as a result of the mistrial, such as legal research, requests to admit, and the preparation of charts and chronology.

[27] Contrary to the position adopted by the Defendants, the fact that the Plaintiffs refused to admit any of the facts set out in the Defendants’ Request to Admit after the first trial does not turn all the costs of the first trial into costs thrown away. Preparation relating to Mr. Strasser’s evidence was just one part of trial preparation. Further, I agree with the Plaintiffs that it was helpful for the court to hear the trial testimony of Mr. Strasser in context, and I note that there is no evidence before me that the Defendants sought the assistance of Justice Stinson – as contemplated in his January 14, 2019 order – with respect to the parties’ failure to reach an agreement regarding the use of the evidence from the first trial.

[28] Moreover, I do not agree that the costs of the motion to withdraw admissions are costs thrown away. If the mistake had been uncovered earlier in the litigation and the motion had been brought before the trial, the costs associated with the motion would not have been considered to be costs thrown away. The motion was necessary in the circumstances. Conversely, I consider the costs of the Defendants’ motion for a mistrial to be costs thrown away. However, I note that both motions were closely intertwined, and the Defendants did not distinguish between the two in their bill of costs. Between the two motions, the motion to withdraw admissions was the main one.

[29] Upon reviewing the Defendants’ bill of costs, I conclude that the Defendants are entitled to claim $85,506.48 as costs thrown away on a full indemnity basis, i.e.: (a) the full costs of their counsel’s attendance at the first trial ($38,377.50); (b) 20% of the costs they are claiming for trial preparation ($22,699.60); and (c) the costs of the mistrial cross-motion (which I estimate to be 25% of the costs incurred for both the motion to withdraw admissions and the cross-motion for mistrial, i.e. $24,429.38). I find that this amount of costs thrown away is fair and reasonable.

[30] With taxes, the total amount of costs thrown away is $96,622.32.

[31] As for the other 80% of the preparation costs for the first trial and the costs of the motion to withdraw admissions, they should be considered as costs of the action. However, as stated below, these costs will be calculated on a partial indemnity basis, not on a full indemnity basis.

b. Scale of costs for the costs of the action

[32] In my view, despite the offer to settle made by the Defendants, the appropriate scale of costs for the costs of the action is partial indemnity.

[33] In Davies v. Clarington (Municipality), 2009 ONCA 722 at para. 40, the Court of Appeal stated that: (a) the judicial discretion under Rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs; and (b) apart from the operation of Rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. [1]

[34] I reject the Defendants’ suggestion that recent cases have cast doubt on this holding. Less than one year ago, the Court of Appeal reiterated that “costs on the elevated scale are exceptional and are reserved for those situations when a party has displayed reprehensible, scandalous or outrageous conduct”: see Quickie Convenience Stores Corp. v. Parkland Fuel Corporation, 2021 ONCA 287 at para. 4. There was no such conduct on the part of the Plaintiffs in this case. As a result, the appropriate scale of costs is partial indemnity.

[35] While, under Rule 49.13, I can take the Defendants’ offer to settle into account when exercising my discretion to award costs on a partial indemnity basis, it is my view that the Defendants’ offer to settle should not have an impact on the quantum of costs because the element of compromise in the offer was very limited when considered in light of the nature and circumstances of this case.

c. Quantum

[36] I agree with the Plaintiffs that the Defendants should not be awarded any costs in connection with the motion to remove Aird & Berlis LLP as lawyers of record for the Defendants. Valid concerns were raised by the Plaintiffs regarding a conflict on the part of Aird & Berlis LLP and, as a result of the bringing of the motion, additional relevant documents were located, including a significant one.

[37] Based on the bill of costs of the Defendants, after deducting the costs for the removal motion and adding the costs related to the first trial that were identified above as not being costs thrown away, the quantum of costs on a partial indemnity basis sought by the Defendants is $352,670.03 (before taxes) for approximately 915 hours. This amount is approximately $45,000 more than the total amount of partial indemnity costs (before taxes) reflected in the Plaintiffs’ bill of costs, which also includes all the costs related to the first trial and the removal motion.

[38] While it is true, as pointed out by the Defendants, that the Plaintiffs’ legal team spent more hours on the matter than the Defendants’ legal team, a significant percentage of these hours were spent by a paralegal, at a much lower hourly rate than a lawyer. The time spent by senior lawyers in the Defendants’ legal team substantially exceed the time spent by senior lawyers in the Plaintiffs’ legal team, which explains in part the significant difference between the totals of the bills of costs of the parties.

[39] The principle of indemnification for reasonable costs requires that legal tasks which do not require the skill and experience of a senior counsel be appropriately delegated to less expensive timekeepers. If the choice is made to have all or the bulk of legal tasks performed by a senior lawyer, it is not a choice for which the opposing party should be obliged to pay at senior counsel’s rate. See Romspen Investment Corporation v. 6711162 Canada Inc., 2014 ONSC 3480 at para. 4 and Browne v. Toronto Star Newspapers Limited, 2015 ONSC 2968 at para. 14.

[40] The other main reason for the difference between the totals of the parties’ bills of costs is the lawyers’ rates. However, I find that the rates used by the Defendants’ lawyers are reasonable and should have been within the reasonable contemplation of the Plaintiffs given the nature of this case and the amounts in dispute.

[41] During the trial, including the closing submissions, I noted that the Defendants sometimes had a tendency to engage in overkill. While this observation does not support a substantial deduction, it is a relevant consideration when assessing the overall reasonableness of the costs award in this case.

[42] In light of all the circumstances of this case, and taking into account the factors discussed above, it is my view that it is necessary to apply a reduction to the costs sought by the Defendants in order to ensure the overall reasonableness of the costs award. In my opinion, $60,000 is an appropriate reduction.

Conclusion

[43] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that the fair and reasonable award of costs in favour of the Defendants is as follows:

a. $96,622.32 (taxes included) for costs thrown away on a full indemnity basis; b. $330,717.13 (taxes included) for the costs of the action on a partial indemnity basis; and c. $35,082.56 for disbursements,

for a total of $462,422.01.

[44] In my view, this is an amount that the Plaintiffs should reasonably have expected to pay in the event that they were unsuccessful in the action.

[45] The costs are to be paid by the Plaintiffs to the Defendants within 30 days.

Vermette J. Date: April 26, 2022

[1] The Defendants recognize that Rule 49.10 does not apply in this case.