Is CBSG required to pay all litigation expenses incurred by A&P?
Ontario, Canada
The following excerpt is from Maher v. Great Atlantic & Pacific Company of Canada Limited, 2009 CanLII 724 (ON SC):
CBSG submits that each party should bear its own expenses incurred in this action on the grounds that: a) the allocation of litigation expenses is ultimately an issue for the discretion of the court. The court has a discretion to decline to enforce a contractual provision regarding costs. In support of this proposition it cites the decision of Steele, J. in Kentucky Fried Chicken v. Scott [1997] OJ 4451. It submits that this case does not justify one party bearing the expenses of another party, and b) the intent of the indemnity agreement was to reimburse A&P for expenses incurred as a result of the negligence of CBSG or those for whom it was responsible. In this case, the jury found that there was no such negligence.
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