The Respondent mortgagee, Bowstein Holdings Inc., in a creditor dispute was successful in an Application for priority status, and sought solicitor-client Costs pursuant to the mortgage. The Applicant, Care Vest Capital Inc., submitted that counsel for both parties had agreed that Costs for the Application should not exceed $1,500.

Justice Thomas confirmed that the general approach under Rule 10.29 is that the successful party to an Application is entitled to a Costs award as against the unsuccessful party, and that this is subject to the Court’s general discretion under Rule 10.31 and section 21 of the Court of Queen’s Bench Act, RSA 2000 c C-31. Rule 10.33 identifies factors that the Court may consider in exercising that discretion. However, judicial discretion relating to Costs can be fettered by clear contractual terms that set out how Costs will be determined. Because the mortgage in question was not explicit with respect to Costs, solicitor-client Costs were not appropriate in the circumstances.

Thomas J. applied the general rule that the successful party is entitled to their Costs forthwith and awarded Costs to the Respondent mortgagee in accordance with Schedule C. His Lordship tripled the Column 3 Costs because of the substantial sums involved as well as the time and effort involved in resolving the Costs issue.