Overview:

• Main Outcome:
  • 244 recovered $82,752 from CDS at trial.
  • CDS recovered $30,000 on its counterclaim.
  • Net payable to 244: $52,752.
  • CDS defended against $569,693 of the $652,445 claimed by 244.
  • Both parties claimed success, leading to contested cost recovery.

Positions of Parties:

• 244: Sought $219,799 in partial indemnity costs; argued CDS’s settlement offer was invalid due to timing and inadequate cost coverage.
• CDS: Sought $146,050 in partial indemnity costs; argued it made a reasonable settlement offer under Rule 49.13.

Factors Considered for Costs:

1. Success: 244 had limited success; CDS largely defended the claims and succeeded on the counterclaim.
2. Amount Claimed and Recovered: CDS succeeded on 91.9% of the claim and counterclaim combined.
3. Complexity and Importance: Case involved complex, significant issues with extensive documentation.
4. Scale of Costs and Offers to Settle: CDS’s offer ($80,000 + $40,000 costs) was close to the awarded amount but didn’t meet Rule 49.10(2) requirements.
5. Reasonable Expectations of Payment: CDS expected some cost liability due to offer timing and partial success of 244.

Disposition:

• Cost Award: CDS to pay 244 $100,000 plus HST in costs and $16,612.55 plus HST in disbursements.

Total Monetary Award/Costs/Damages:

• Net Recovery for 244: $52,752 (244's total recovery of $82,752 minus CDS's counterclaim of $30,000).
• Costs Awarded to 244: $100,000 plus HST in costs.
• Disbursements Awarded to 244: $16,612.55 plus HST.
• Therefore, 2449442 Ontario Inc. is to receive a total monetary award of $169,364.55 plus applicable HST.