Wayne F. McCormick

Following trial, the court determined costs relating to both the main action for unpaid invoices and the defendant’s counterclaim alleging damages relating to contaminated feed.

The plaintiff obtained judgment on the main action and successfully defended the counterclaim.

The court applied the principles governing costs under Rules 49 and 57 of the Rules of Civil Procedure, emphasizing proportionality, reasonableness, and the expectation of the losing party.

Substantial indemnity costs were awarded for the main action due to a valid Rule 49 offer to settle, while partial indemnity costs were awarded for defending the counterclaim because no reprehensible conduct justified elevated costs.

The court reduced certain expert disbursements and fees as excessive or unnecessary before fixing total costs.

A commercial feed supplier sued for payment of unpaid invoices for rabbit feed supplied to a rabbit farm.

The defendant admitted the invoices but counterclaimed for negligence and breach of contract, alleging the feed was contaminated with vomitoxin (DON) causing illness and increased mortality among rabbits.

The court held that the defendant failed to prove on a balance of probabilities that the feed caused the mortality spike, preferring expert evidence suggesting rabbits were relatively tolerant to the levels detected.

The court also rejected claims for breach of an implied condition of merchantable quality under s. 15 of the Sale of Goods Act because no industry tolerance level existed and causation was not established.

Judgment was granted for the supplier for the unpaid invoices with statutory interest, and the counterclaim was dismissed.