The Court previously granted the Plaintiffs Summary Judgment against the Defendants after hearing a Special Chambers Application brought under s 53 of the former Builders’ Lien Act, RSA 2000, c B-7 (the “Decision”). As the parties were unable to agree on Costs, the Court considered the appropriate Costs Awards following the Decision.

The Plaintiffs argued that they were entitled to full indemnity Costs or, in the alternative, 80% of its solicitor and own client Costs. The Defendants argued that a Costs Award based on column three of Schedule C was appropriate. The Court noted that the successful party is presumptively entitled to Costs under Rule 10.29. The Court also noted that Rule 10.31 provides wide discretion to make a Costs Award considering the factors set out in Rule 10.33.

The Court considered the procedural history, and draft Bills of Costs prepared by the parties. The Court compared the draft Bills of Costs submitted by the parties and noted that the Plaintiffs’ Bill of Costs was almost 19 times the amount that the Defendants would be required to pay under Schedule C of the Rules. The Court determined that there must be proportionality between what the successful party spent and how much that party can reasonably expect the other party to pay. The Court noted that the time and steps taken in the Action, and therefore the solicitor and own client fees incurred were disproportionate to the Costs that should reasonably have been incurred. The Court declined to award full indemnity Costs and awarded Costs based on column four of Schedule C and an additional lump sum of $20,000.