Executive Summary: Key Legal and Evidentiary Issues

• Assessment of costs following the abandonment of a summary judgment motion.

• Application of New Brunswick Rules of Court regarding costs, including Rule 59 and Rule 22.

• Determination of whether costs should be awarded on a substantial indemnity basis.

• Consideration of procedural delays, including those attributed to the COVID-19 pandemic and changes in counsel.

• Evaluation of the complexity and significance of the issues raised in the summary judgment motion.

• Absence of authority supporting substantial indemnity costs for interlocutory or abandoned motions.

Facts and outcome of the case

Background and parties

Probilt Industries Inc. initiated legal proceedings in 2014 against the City of Miramichi, Csaba Kazamer, Michael Noel, Colleen Bawn, and the Attorney General of Canada. The dispute centers on allegations that the federal government failed to treat Probilt Industries Inc. fairly in the bidding process for the National Pay Centre project. Over the course of the litigation, the pleadings were amended multiple times, and several procedural steps, including examinations for discovery, were completed. The Attorney General of Canada filed a motion for summary judgment in 2018, which was held in abeyance due to a successful prematurity motion by the plaintiff. The motion remained unresolved for nearly six years and was ultimately withdrawn by the Attorney General of Canada in May 2024.

Procedural history and summary judgment motion

After the withdrawal of the summary judgment motion, Probilt Industries Inc. sought costs under Rule 59.07(3) of the New Brunswick Rules of Court. The plaintiff argued for costs on a substantial indemnity basis, citing significant legal expenses and the protracted nature of the litigation, which included delays attributed to the defendants' conduct. The defendants countered that many delays were due to external factors, such as the COVID-19 pandemic, scheduling difficulties with retired witnesses, and the death of the plaintiff’s original counsel. Both parties referenced relevant case law and rules regarding the assessment of costs for abandoned motions.

Key legal issues and analysis

The court examined whether the plaintiff was entitled to costs on a substantial indemnity basis for the abandoned summary judgment motion. It considered the factors set out in Rule 59.02, including the complexity of the proceeding, the conduct of the parties, and the significance of the issues. The court noted that while the amount claimed by the plaintiff was substantial, no recovery had yet been determined, and the litigation was ongoing. The court also reviewed relevant jurisprudence, concluding that substantial indemnity is not the norm for interlocutory or abandoned motions in New Brunswick.

Outcome and costs awarded

The court determined that the plaintiff was entitled to costs as a result of the defendant’s abandoned motion for summary judgment. However, it declined to award costs on a substantial indemnity basis, finding no authority or justification for such an award in this context. Instead, the court assessed costs in the amount of $10,000 to be paid to Probilt Industries Inc. No disbursements or damages were awarded in this decision, as the ruling was limited to the assessment of costs related to the abandoned motion. The underlying litigation remains ongoing, with no final determination on the merits of the case as of the date of this decision.