Stephen M. Werbowyj

Following a five‑day civil trial, the court determined the issue of costs.

The plaintiffs argued that the results of the litigation were mixed and that this should affect the costs award.

The court rejected that characterization, finding the action brought by the plaintiffs was the principal issue and that the cross‑claim was of lesser significance.

Considering the principles in Rule 57 of the Rules of Civil Procedure, including proportionality and the reasonable expectations of the losing party, and having regard to settlement offers, the court fixed costs payable to the defendants.

The plaintiffs commenced an action alleging that $100,000 advanced to the defendants' corporation was a loan repayable on demand.

The defendants argued the payment formed part of an investment agreement under which the plaintiffs would purchase a 25% share of the company and become salaried employee-investors.

The court assessed the credibility of the witnesses and found the defendants' evidence more reliable.

The court concluded the transaction was a share purchase agreement with a non-refundable payment rather than a loan.

The plaintiffs therefore failed to establish their claim on a balance of probabilities.