Background
This was a costs decision following the Court of Appeal’s merits judgment in Evertz Technologies Limited v. Providius Corp., 2026 ONCA 352. In that judgment, the court upheld a stay of Evertz’s action against Providius after finding that Evertz’s failure to disclose a settlement agreement amounted to an abuse of process.
On the underlying motion, Providius had received $60,000 in all-inclusive partial-indemnity costs. It sought $190,000 in substantial-indemnity costs for the appeal. Evertz accepted that Providius was entitled to appeal costs, but proposed $25,000 on a partial-indemnity basis.
The Court’s Holding
The Court of Appeal fixed Providius’s appeal costs at $110,000, all-inclusive, on a partial-indemnity basis. It declined to award substantial-indemnity costs.
The court held that Evertz understated what was at stake for Providius. Providius had taken the lead in preparing and arguing the shared issues, while also defending the stay directly challenged by Evertz. The court also relied on its earlier findings that Evertz had misled Providius and the court about the settlement agreement, causing unnecessary litigation, delay, and an abuse of process.
Key Takeaways
- A successful respondent may recover significant appeal costs where the appeal places the underlying remedy at substantial risk.
- A party’s misleading conduct concerning settlement disclosure can materially affect the costs assessment.
- Even serious litigation misconduct does not automatically result in substantial-indemnity costs.
Why It Matters
The decision underscores that costs on appeal reflect the practical stakes and work required to defend a judgment, not simply the division of oral argument time. It also reinforces the court’s concern with full and timely disclosure where a settlement changes parties’ adversarial positions.