Date: 2010-01-25 Docket: 07-CV-335295PD2  M. A. Code J. | Link

"As set out at para. 8 of the main judgment, the allegation of "bad faith" was central to two of the three issues at trial.  I estimate that ninety per cent of the evidence at trial, both viva voce and documentary, was focused on attempts to prove or negate the allegation of "bad faith". At para 11, the Court observes, "Given that the great majority of the costs incurred in this case were driven by the failed allegation of "bad faith", I conclude that the Plaintiff was substantially unsuccessful and that the Defendant achieved substantial success in negating this serious allegation." At para 27, the Court further says, "(g)iven the very aggressive way in which the Plaintiff conducted the litigation, raising unfounded and misconceived issues, summonsing unnecessary witnesses and seeking speculative discovery of further electronic documents by way of repeated motions, it would not be appropriate to subject the Defendant's quantum of work to a microscopic analysis.  A different kind of case could have been defended more efficiently but I am not satisfied that this case should have been defended much differently than it was, subject to the one area of concern noted above.  The Plaintiff must have known that pursuing an allegation of "bad faith" against a large successful bank, with its reputation to defend, would result in a vigorous defence and very substantial exposure to costs." Defendants were awarded costs of $240,000.