The Defendant applied to recover the fees related to work completed by its experts which was not used at Trial (the "Expert Work"). The Defendant was successful at Trial, and a Costs Application was subsequently heard. The Defendant did not raise the fees related to the Expert Work at the Costs Application.

The Plaintiff argued that the Court could not now award Costs for the Expert Work, maintaining that as a Judgment had been entered, Macleod J. was functus officio; the Costs for the Expert Work were not raised at the Costs hearing; and pursuant to Rule 10.31 expert fees are only awarded if the Court so orders.

Justice Macleod stated that, in limited circumstances Rule 9.14 allows the Court to enter a further Order after a Judgment is rendered, but in this case, the significant fees related to the Expert Work should have been argued at the Costs Hearing. In particular, Macleod J. held that there was a “real issue” with respect to whether the fees would have been allowed at the time of the Costs Hearing. Further, expert fees are not a taxable disbursement unless so ordered by the Court. The Defendant's Application was dismissed.