Agyapong v. Starwood Hotels & Resorts Worldwide Inc., 2011 ONSC 2480 (S.C.J.) (Rule 20.06 – costs on a motion for summary judgment)
Judgment Released April 20, 2011 Link to Judgment
Following a motion for summary judgment which was unsuccessful, the plaintiff/responding party sought its costs of the motion. The unsuccessful moving party resisted an order of costs on the basis that it was reasonable for it to have brought the motion. While the Court agreed that the motion was reasonable, and that the motion resulted in narrowing issues for trial, it found that the appropriate cost consequences of reasonably bringing an unsuccessful summary judgment motion in this case were that moving party should pay the responding party’s costs on a partial indemnity basis, as the responding party was successful and there was no reason to depart from the general rule.
The Court noted that the amendment to Rule 20.06 removed the presumption of substantial indemnity costs against the unsuccessful party and that the new rule states that the court may award costs against a party on a substantial indemnity basis if that party acted unreasonably by making or responding to a summary judgment motion. The Court went on to note that in order to deny the successful party their costs, some additional factor should be present beyond the reasonableness in bringing the motion.