Executive Summary: Key Legal and Evidentiary Issues

• Providius sought substantial indemnity costs of $190,000 for successfully defending the appeal of the stay order granted in its favour.
   
• Evertz argued the appropriate costs award was $25,000, characterizing Providius's oral submissions as focused mainly on the shared Handley Estate issue.
   
• The panel rejected Evertz's characterization, accepting Providius's account of the significant work its counsel undertook on both the shared and case-specific issues.
   
• Central to the costs analysis was the Court of Appeal's earlier finding that Evertz had engaged in an abuse of process by misleading Providius and the court about a settlement agreement.
   
• Findings of fact supported the conclusion that Evertz's non-disclosure caused prejudice to Providius, reinforcing the stay as one of the "clearest cases" warranting such relief.
   
• Ultimately, the court fixed Providius's costs at $110,000 on a partial indemnity basis, reflecting the stakes involved and Evertz's own litigation conduct.
   

Facts of the case

This costs decision follows the Court of Appeal for Ontario's earlier ruling in Evertz Technologies Limited v. Providius Corp., 2026 ONCA 352, which had permitted the parties to make costs submissions where they could not agree (at para. 169). This decision resolves costs as between Evertz and Providius. The underlying dispute traces back to an order of Justice Colin P. Stevenson of the Superior Court of Justice, dated October 25, 2024 (2024 ONSC 5778), in which Providius successfully obtained a stay of Evertz's action. The motion judge, applying the rule in Handley Estate, awarded Providius costs of that motion on a partial indemnity basis in the amount of $60,000, all-inclusive, while declining to award costs on a substantial indemnity basis. On the subsequent appeal, Providius sought costs of the appeal on a substantial indemnity basis in the amount of $190,000, all-inclusive. Evertz accepted that Providius was entitled to costs of the appeal but argued the amount should be $25,000, all-inclusive, on a partial indemnity basis.

Policy and legislative provisions at issue

Two legal standards frame the decision. The first is the threshold for substantial indemnity costs: the motion judge had found he was "not prepared to say that Evertz's conduct was 'reprehensible, scandalous or outrageous conduct,' which is the type of conduct which is necessary for a costs award on a substantial indemnity basis." The second is the rule in Handley Estate itself, which governs automatic stays and was the central issue Evertz contested on appeal, arguing that the motion judge's application of the rule "represents a dramatic, unwarranted expansion" of it and that leaving the stay in place would be "harsh, drastic, and unnecessary in the circumstances of this case." Also relevant is the abuse of process doctrine, which the panel had earlier applied to Evertz's non-disclosure of a settlement agreement that it claimed related solely to a separate Delaware action.

Reasoning and analysis

Evertz argued that Providius's oral submissions on appeal were disproportionately devoted to the shared Handley Estate issue — roughly three-quarters of its time — rather than to responding to Evertz's specific appeal, and that costs should be reduced accordingly. The panel found this submission understated what was at stake for Providius, accepting Providius's explanation that, given those stakes, its counsel took the lead role in preparing both the shared-issues factum and its own factum, and in delivering oral argument on the shared issues, while Evertz's counsel made no submissions on the shared issues yet still incurred approximately $70,000 in fees. The panel also grounded its assessment in its earlier findings on Evertz's litigation conduct, noting that Evertz had repeatedly misled Providius and the court by asserting that the settlement agreement need not be disclosed because it related solely to the Delaware action, when in fact it converted the settling defendants' position from adversarial to cooperative. Although the motion judge made no express finding of prejudice — this being unnecessary under Handley Estate — the panel held that his factual findings supported the conclusion that Evertz's conduct caused prejudice to Providius, making this one of the clearest cases warranting a stay. The panel further held that prejudice is a relevant factor in an abuse of process analysis but not a prerequisite, and that the combination of Evertz's misleading conduct, the burden of unnecessary litigation, and unacceptable delay was sufficient to ground a finding of abuse of process, with no need to remit the matter to the motion judge for further evidence on prejudice.

Ruling and overall outcome

Weighing the stakes for Providius on the appeal, the additional work required to defend the motion judge's decision, Evertz's own expenditure on the appeal, and Evertz's failure to meaningfully analyze Providius's bill of costs, the Court of Appeal fixed Providius's costs of the appeal at $110,000, all-inclusive, on a partial indemnity basis — an amount between the $190,000 substantial indemnity costs Providius had sought and the $25,000 proposed by Evertz.