The underlying claim dealt with a dispute between co-executors of an estate. The issue was disposed of and the parties were unable to resolve the issue of Costs. The Applicant took the position that Costs were payable by the estate on a solicitor-client basis or otherwise on an enhanced basis. The Respondent argued that each party should bear their own Costs, as there was mixed success or, in the alternative, the estate should pay both party’s Costs pursuant to Schedule C of the Rules.

Justice Armstrong considered Rule 10.33, which sets out relevant factors to consider when the Court exercises its discretion in making a Costs Award. This includes the result of the Action and the degree of success of each party, the amount claimed, the amount recovered, the complexity of the Action, and the conduct of the parties. Armstrong J. also considered Rule 10.31, which grants the Court broad discretion to determine Costs, including with relation to the actual costs incurred by a successful party. In the estate context, the Court also considered the added consideration of whether the challenge to the estate was reasonable.

Justice Armstrong ultimately concluded that both parties should have their Costs based on the Schedule C rate, by the estate. There was mixed success. There was no unreasonable conduct by the parties during the litigation, and the Application was necessary. There were offers to settle, but the value of those offers was not properly before the Court, as they were based on the value of lands and no appraisal was provided.