Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs’ summary judgment motion was dismissed due to numerous factual disputes and credibility issues.

• Costs were awarded against the plaintiffs on a substantial indemnity basis due to unreasonable litigation conduct.

• Defendants’ entitlement to costs was upheld despite plaintiffs’ allegations of misconduct, which were found to be baseless.

• The court rejected plaintiffs’ request to defer the costs decision to trial, citing limited relevance of the motion record.

• Proportionality and the principles of the Simplified Procedure rule were central to the court’s cost analysis.

• The final cost award of $35,000 was reduced from the claimed amount to reflect fairness and judicial economy.

Facts and background

The plaintiffs, David and Sunha Tchor, brought a summary judgment motion in a Simplified Procedure action seeking approximately $121,000 in damages against the defendants, Terra Contracting Inc. and Yusef Abu-Halimeh. The motion was dismissed on June 17, 2025, with reasons delivered orally. The court's subsequent written endorsement addresses the resulting costs dispute. The action was governed by Rule 76 of the Rules of Civil Procedure, intended for efficient litigation of lower-value claims.

Arguments on costs and litigation conduct

Following dismissal of the motion, the defendants sought $82,805 in substantial indemnity costs, or alternatively $53,826 on a partial indemnity scale. The plaintiffs, self-represented by David Tchor (a licensed lawyer), opposed this and argued for no costs or a costs award in their favour. They accused defendants’ counsel of unethical conduct, misrepresentation regarding court filing deadlines, and deception to mislead the court. Justice Petersen found these allegations unfounded and unsupported by any evidence. The court clarified that the filing of a reply record was the plaintiffs’ responsibility as the moving party and that the adjournment of an earlier hearing date resulted from an administrative error, not misconduct.

Assessment of procedural fairness and misuse of process

Justice Petersen concluded that the plaintiffs acted unreasonably by pursuing summary judgment despite the presence of numerous factual disputes and credibility issues. The court highlighted that Mr. Tchor’s affidavit contained 27 separate denials of the defendant’s sworn statements, showing clear evidentiary conflict. Under Rule 76, which limits discoveries and prohibits cross-examination, such a motion was plainly unsuitable. The plaintiffs were warned by opposing counsel early in the process that summary judgment would not be appropriate, and that cost consequences might follow under Rule 20.06 if they proceeded unsuccessfully.

Court’s evaluation of costs and proportionality

Although the defendants succeeded on the motion, the court declined to grant the full $82,805 claimed, finding the total time billed (over 200 hours) excessive given the nature of the motion. The court reduced the amount to $35,000, inclusive of fees, disbursements, and HST. The court emphasized that Simplified Procedure actions are intended to provide affordable access to justice, and that excessive cost awards would undermine this goal. The plaintiffs' claim was for $121,000, and any award exceeding $50,000 would be disproportionate. The defendants’ billing included unnecessary duplication of effort and charges for adjourned hearings already compensated.

Final ruling on costs

Justice Petersen ordered the plaintiffs to pay $35,000 to the defendants within 30 days, with post-judgment interest to apply thereafter. The ruling reflects a balance between rebuking unreasonable litigation conduct and maintaining proportionality in a simplified procedure case. The court reinforced that the integrity of Rule 76 must be preserved by containing costs and discouraging strategic misuse of summary judgment.