10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

This was an Application to determine costs payable following an Appeal of a Provincial Court Judgment. The underlying Action involved a claim for compensation for alleged wrongful dismissal.

The Plaintiff succeeded in his Claim at first instance but was unsuccessful on Appeal. Counsel for the Plaintiff argued that each party should bear its own costs given the Plaintiff’s minimal assets and difficulties he would face in paying any costs award that might be rendered.

In considering an appropriate costs award, the Court noted Rules 10.29 and 10.33, highlighting both the general rule that successful litigants are entitled to costs, as well as the Court’s residual discretion. Turning to the Plaintiff’s argument, the Court held that it could not disregard the general rule on the basis of hardship that might be suffered by the unsuccessful litigant or on the basis of impecuniosity. However, the circumstances of the case, including the Plaintiff’s success at first instance, pointed away from an award completely in favour of the Defendant employer.

Ultimately, having regard to the importance of the Appeal, which clarified significant issues for employer policies and procedures to be adopted in similar situations, the Court awarded costs in favour of the Defendant for the Appeal, with each party to bear its own costs of Trial.

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