AIC Ltd. v. Infinity Investment Counsel Ltd.
T-1712-97
Rothstein J.
10/6/98
7 pp.
Court dismissed plaintiff's motion for judgment based on alleged settlement, with result action to proceed to trial and judgment after trial-Costs on motion awarded to defendants-When parties appeared before Court to argue question of costs, plaintiff made preliminary objection to costs being awarded to defendants, arguing costs should be awarded "in the cause"-While some case law in support of awarding costs in the cause, recent case law endorsing awarding costs in any event of cause-Fixing of costs and making them payable forthwith instrumentality aimed at expedition, serving as well twin objective in salutary purpose of focussing minds of litigants on cost of litigation: Apotex Inc. v. Egis Pharmaceuticals (1991), 37 C.P.R. 335 (Ont. Ct. (Gen. Div.)) and Applied Systems Technologies Inc. v. Sys-Net Computer Systems, Inc. (1992), 41 C.P.R. (3d) 129 (Ont. Ct. (Gen. Div.))-Furthermore, Federal Court Rules, 1998, R. 401(1), making express provision for award of costs on motions, and enabling Court to order costs of motion payable forthwith, clearly applicable-R. 401 to be interpreted as providing that discretion in awarding costs to be exercised in accordance with policy for awarding costs on motions as set out in Apotex and Applied Systems: issue on motion may not be issue at trial and that fixing of costs on motion instrumentality aimed at expedition and focussing minds of litigants on costs of litigation-Accordingly, costs may be awarded to defendants as successful parties on plaintiff's motion for judgment-General practice not to await outcome of appeal before costs dealt with in Trial Division proceedings-Having regard to importance of issues and amount of work involved on motion, as well as disbursements of close to $3,000, defendants awarded lump sum amount of $43,000 inclusive of disbursements-Federal Court Rules, 1998, SOR/98-106, R. 401.