Thomas S. Kent

Following an application in which the applicant obtained a declaration as its primary relief but was denied other remedies, the court addressed the issue of costs.

The applicant sought substantial indemnity costs, alleging bad faith conduct and reliance on an offer to settle under Rule 49.10(1) of the Rules of Civil Procedure.

The court rejected these arguments, finding no bad faith and holding the offer to settle did not meet the rule’s requirement of being made at least seven days before the hearing.

Applying the discretionary factors under Rule 57.01 and s. 131 of the Courts of Justice Act, and considering the partial success achieved, the court fixed costs on a partial indemnity basis.

Costs were awarded in the amount of $40,000 inclusive of HST and disbursements.

The applicant sought declarations and mandatory relief arising from a cooperation agreement relating to a solar power rooftop project and associated FIT contracts.

The respondents refused to execute transaction documents required to complete a sale of project assets, citing a disputed right of first offer held by a related entity.

The court held that the cooperation agreement clearly required the corporate respondent to use commercially reasonable efforts to facilitate any transaction relating to the project, including asset or share sales.

A declaration was granted confirming that the respondent corporation was obligated to sign the documents, but the court declined to grant a mandatory order or injunction because the applicant failed to establish irreparable harm under the RJR‑MacDonald test.