jones j

4.29: Costs consequences of formal offer to settle
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff, Cogent, commenced an Action against the Defendant, EnCana, for breach of a contract related to the construction of the Bow Office Tower in Calgary. Jones J. dismissed Cogent’s Claim and directed the parties to provide written submissions if they were unable to agree on Costs. EnCana sought Costs to be determined in accordance with Column 4 of Schedule C to the Rules of Court. EnCana also submitted fees for second Counsel. Both parties used second Counsel at Trial. Cogent opposed EnCana’s request for Costs; specifically, EnCana’s request to double its Column 4 Costs, and double Costs in respect of items attributable to the period after EnCana submitted an Offer to Settle.

EnCana had served an Offer on Cogent for $50,000, plus taxable Costs and disbursements for all steps taken in the Action to the date of the Offer. The Offer was served two months prior to the commencement of Trial, but Cogent did not respond. Jones J. held that the Offer was made in compliance with Rule 4.29. EnCana was entitled to double Costs, computed with reference to Column 4 but with no multiplier added, and only in respect of Items 10(2) and 11 of Schedule C. Jones J. declined to award Costs in respect of EnCana’s summary of closing argument, which was merely an outline of EnCana’s closing submissions. The Costs associated with that document were already subsumed in the items in Schedule C for Trial preparation and Trial attendance. Jones J. also held that an award of fees for second Counsel was appropriate in the circumstances.

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