Judgment Released: August 25, 2010 Link to Judgment
The Defendants’ motion for summary judgment arose in a personal injury claim by the Plaintiff, who injured his wrist on property allegedly owned by the Defendants, and claimed they were therefore liable under the Occupiers Liability Act. Following examinations for discovery, the parties obtained a survey of the property which showed the Defendants were not the owners of the property in question. The Defendants’ brought a motion for summary judgment, relying on the survey, which was successful. The Court then dealt with the issue of costs. As the successful parties, the Defendants sought $37,317.67 in costs, on a partial indemnity basis.
The Court noted that it has broad discretion when determining the issue of costs: “Prior to January 2010, the former rule indicated that if a party moved for summary judgment unsuccessfully, the general outcome was that substantial indemnity costs would be ordered against it. The new rule 20.06 states that the court may fix costs of a motion for summary judgment on a substantial indemnity basis if the court is of the view that a party acted unreasonably by making or responding to the motion or if a party acted in bad faith.” In this case, the Court did not view the conduct of the Plaintiff as being unreasonable or in bad faith, although the Court noted that “After it became clear that the area was, in fact, owned by [another party] which is not a party to the action, the solicitor for the plaintiff ought to have given serious consideration to the chances of success of the action against [the Defendants]. This did not occur and legal fees were expended in drafting the Summary Judgment motion materials.” Bearing in mind what the unsuccessful Plaintiff might reasonably have expected to pay, should he be unsuccessful, and considering the relevant factors set out in Rule 57.01, the Court awarded the Defendants costs on a partial indemnity basis of $25,000.