14.59: Formal offers to settle
14.88: Cost awards

Case Summary

After an unsuccessful Appeal of a Decision granting a non-suit Application which struck out the Appellant’s claim, the parties applied for a ruling on Costs. The Court noted that pursuant to Rule 14.88, the successful party to an Appeal is entitled to Costs in accordance with Schedule C unless otherwise ordered. That meant that the Respondent was entitled to Costs on Column 5 of Schedule C.

The Appellant argued that he should not have to pay Costs because the litigation had left him impecunious, but the Court of Appeal noted that this is generally not a basis to deny Costs to the successful party. The Appellant also argued that he should not have to pay Costs because he was “effectively without a remedy”, having been unable to sue for civil damages or employ the Respondent’s internal grievance processes. The Court of Appeal rejected this argument as well. The fact that the Appellant had no claim against the Respondent was what entitled the Respondent to Costs and could not be used as a basis to suggest that no Costs should be ordered.

The Respondents sought double Costs after the date of their Calderbank offer to settle the Appeal for $1.00 on the eve of oral argument. The Court of Appeal noted that under Rule 14.59, Costs may be doubled when a formal offer of settlement is made, but such doubling “is not automatic or presumed”. The Court noted that the Costs rules exist to encourage reasonable settlement of litigation, and that offers must therefore be reasonable. It held that the offer was not a genuine offer to settle and therefore should not impact Costs. The Respondents also sought Costs for second counsel at the Appeal. The Court of Appeal held that, while it was not unreasonable for second counsel to appear at the Appeal, the issues were not sufficiently complex to justify the additional fees. As such, the Court of Appeal awarded Costs to the Respondent on Column 5 of Schedule C.

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