where a party has engaged in very egregious conduct, such as
fraud or deceiving the court, has conducted itself in a way that is
reprehensible, scandalous or outrageous, has fraudulently created
documents and repeatedly lied under oath in an attempt to perpetrate a fraud upon the other party and the court.
 The defendants acknowledge the requirement that the
impugned conduct be “egregious” to justify full indemnity costs.
The defendants reference the reasons for judgment whereby
Manny Marcos was found, inter alia, to have repeatedly lied and
fraudulently altered and created documents to advance the plaintiff’s claim.
 The plaintiff submits the defendants were inconsistent in
their position during the progress of the action, which increased
the time and exacerbated the complications in the proceedings.
Counsel submits certain admissions, later amended after the
defendants hired trial counsel, and positions taken earlier in the
process should negate any entitlement to full indemnity costs.
The plaintiff also submits the total being claimed, which it says is
actually $649,233.32 if the motions costs are included, far exceeds
what would be fair, reasonable and proportionate and within the
reasonable expectation of the unsuccessful party. Plaintiffs’ counsel argues “the amounts docketed and claimed by any measure
or comparison are widely excessive”. He submits that with the
proper application of all the guiding principles on costs the total
costs award as full indemnity would be $380,559.97, inclusive of
HST and disbursements.
 The plaintiff and non-parties against whom costs are
claimed submit Manny and Joe Marcos do not fall within the factors and exceptional circumstances which permit the court to
make a costs order against a non-party. They submit this case is
one in which the purpose or motive for naming the corporate
plaintiff Marcos as the litigant was bona fide in relation to the
nature of the claim, and it was not for the purpose of protecting
the individuals from liability. They submit there has not been
proper notice to the non-parties of the intention to seek costs personally against them, and the circumstances in which the court
could exercise its discretion on costs against a non-party, as articulated by the Ontario Court of Appeal in the Laval Tool case,1
do not exist in this case.
 Joe Marcos submits he had no involvement in this litigation, he is not a principal of the plaintiff corporation and was
1 1318847 Ontario Ltd. v. Laval Tool & Mould Ltd. (2017), 134 O.R. (3d) 641,
 O.J. No. 1098, 2017 ONCA 184, at paras. 59 and 60.