Legal Blog

Costs-Offer to Settle-Proportionality

Pollard Windows Inc. v. 1736106 Ontario Inc. 2019 Ont SCJ

This action arises out of a construction claim by a window supplier for payment of a debt of $10,300. The action was over 10 years old and had resulted in significant disputes and court proceedings. The plaintiff ultimately had to move to sell the premises in payment of its debt. The plaintiff had offered to settle the litigation for $25,000 on March 13, 2017 and beat that offer at the hearing. The judge awarded full indemnity costs of $150,000, holding that the defendant made the action as expensive as possible to forestall the plaintiff collecting a simple debt for which there was no legitimate defence. He noted that a combination of deceit, frivolous arguments, and repetitive proceedings would have worn out most plaintiffs. Based on the particularly egregious conduct, he felt full indemnity was appropriate even though the awarded costs were far greater than the original debt.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.