A Master had granted the Plaintiff permission to question representatives of the Defendant’s environmental consultant, pursuant to Rule 5.18. The Defendant and the environmental consultant were successful in having that Decision overturned on Appeal. Both the Defendant and the environmental consultant sought Costs.

The Plaintiff defended the suggestion of multiple Costs awards by arguing that the Defendant and the environmental consultant took the same position on Appeal, and the environmental consultant filed limited materials. Notwithstanding this collaboration, the Court held that separate retainer of legal counsel had been reasonable given that the interests of the Defendant and the environmental consultant were not necessarily aligned. Justice Grosse granted Costs in favour of both the Defendant and the environmental consultant.

The Plaintiff argued in the alternative that the environmental consultant was a non-party, and therefore its Costs should be limited to Column 1 of Schedule C. Justice Grosse disagreed, noting the expansive definition of “party” in Rule 10.28 which includes all persons participating in an Application. The Court applied Column 5 of Schedule C, as was otherwise applicable.