The Appellant in this matter appealed a Decision of an Assessment Officer confirming Costs previously awarded to the Respondents following their success in defending an Appeal.

Following the initial Costs Award, the Respondents scheduled an Assessment Hearing pursuant to Rule 10.37. The Appellant did not appear at the Hearing and it was adjourned. The Appellant failed to appear on the adjourned date and the matter proceeded in her absence with the Respondents being awarded Costs pursuant to Schedule C of the Rules.

On Appeal, the Appellant argued that the Hearing proceeding in her absence constituted a breach of Procedural Fairness. The Appellant provided an Affidavit on Appeal. The Court considered the Affidavit, notwithstanding Rule 10.44 which states that an Appeal from an Assessment Officer’s decision is on the record of proceedings before the Assessment Officer.

Justice Devlin began by stating that, pursuant to Rule 14.88, the successful party on Appeal is entitled to Costs unless the Court orders otherwise. His Lordship stated that an Appeal of an Assessment Officer’s decision is permitted under Rule 10.44, and cited the Court’s powers on such an Appeal as under Rule 10.45. Justice Devlin also cited Rules 1.2 and 1.3, which demand that the Court make an Order resolving a Costs issue on its merits with finality when it is able to do so.

The Court held that there was no breach of Procedural Fairness and warned against equating a denial of the right to be heard with a choice not to show up and speak.

The Court held that the merits of the Assessment Officer’s decision were also relevant given the Court’s remedial mandate under Rule 10.45. Justice Devlin found that the Assessment Officer’s decision was correct on the merits and supported by sufficient reasons in the circumstances. The Appeal from the Assessment Officer’s Decision was therefore dismissed.