“Let me begin with a general comment about costs awards. The lawyers will know this but Ms. Kadonoff, who was for the most part self-represented, may not. Costs awards are in the court’s discretion. The Rules provide for three levels of costs: partial indemnity; substantial indemnity which is defined in the Rules as 1.5 times partial indemnity; and full indemnity which is self-explanatory.
In practice, and in accordance with both the Rules and the decisions of the Court of Appeal, the usual costs award is partial indemnity. One of the principles underlying the litigation system in this province is that litigation is not cost-free and the winning party will normally only recover a portion of its actual legal costs from the losing party – generally somewhere between one-third and one-half. The next costs level, substantial indemnity, is only awarded in three situations: where this is specified by contractual agreement; where there are settlement offers that trigger Rule 49; or if conduct of the losing party was “reprehensible” or “outrageous” and thus deserving of sanction.
Provided that one litigates within the Rules, albeit aggressively and relentlessly and in a manner that may well upset the other side, this by itself will not amount to “reprehensible” behaviour. Courts generally require evidence of abuse of process or malice or some form of conduct that is otherwise “egregious.” Substantial indemnity may then be awarded as a form of chastisement and sanction.
In sum, the norm is partial indemnity; substantial indemnity is possible but much less frequent; full indemnity is rarely awarded.”