W. Eric Kay

Following an earlier decision granting an injunction restraining a landlord from terminating a commercial lease without cause, the successful tenant sought elevated costs on a full or substantial indemnity basis, alleging the landlord acted in bad faith.

The court held that the prior reference to “bad faith” concerned contractual conduct and did not amount to litigation misconduct warranting punitive costs.

Finding no unusual circumstances to depart from the ordinary rule that costs follow the event on a partial indemnity basis, the court declined to increase the costs award.

Because the applicant’s submissions seeking punitive costs lacked reasonable basis and caused unnecessary costs proceedings, the court reduced the amount payable by awarding the respondent costs of the costs process.

Following a trial in a wrongful dismissal action where the plaintiff succeeded and was awarded damages, the court addressed the quantum of costs and interest.

The plaintiff sought substantial indemnity costs, arguing that several defences maintained by the defendants until shortly before trial were baseless and vexatious.

The defendants argued that costs should remain on a partial indemnity scale and that certain claimed legal fees should be reduced, including work related to a previously settled summary judgment motion and time spent by a lawyer who did not appear at trial.

Applying the factors under Rule 57.01 and the principle that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $47,500 inclusive of HST and disbursements.

The plaintiff was also awarded pre‑judgment and post‑judgment interest.