Michalyshyn J

10.33: Court considerations in making costs award

Case Summary

The Parties, two sons (the “Sons”) and two daughters and two related family corporations (the “Daughters”), made competing Summary Judgment Applications relating to a dispute over their mother’s Estate. Both Summary Judgment Applications were dismissed, and the Parties were unable to agree to Costs.

The Daughters argued that they should recover Costs because they were successful on three important issues which streamlined the litigation. Second, they argued the Sons’ conduct during the proceedings required an award for Solicitor-Client Costs, or in the alternative, enhanced Costs. The Sons opposed enhanced Costs and argued that the matter of Costs should be handled later, by a Trial Judge.

Michalyshyn J. held that the Daughters were entitled to enhanced Costs, in particular because the Sons had alleged unproven claims of bad faith and dishonesty.

On the issue of the Daughters’ partial success, Michalyshyn J. noted that Costs are not usually allocated for each issue, but that the Court is not prohibited from apportioning Costs for partial successes. His Lordship also noted that Rule 10.33(1)(a) entitles the Court to consider “the result of the action and degree of success of each party”. Further, Rule 10.33(1)(c) requires the Court to consider the “importance of the issues”, and 10.33(1)(g) allows the Court to consider “any other matter relating to the question of reasonable and proper costs that the Court considers appropriate”.

With regard to the Sons’ conduct during the proceedings, Justice Michalyshyn reviewed Rule 10.33(2), which entitled the Court to consider whether the conduct of a party unnecessarily slowed the Action, or whether a party engaged in misconduct. His Lordship concluded that the Sons’ conduct fell short of necessitating an award for Solicitor-Client Costs, but that enhanced costs were still appropriate in the circumstances. The Court did not agree that the matter should be deferred to the Trial Judge.

Michalyshyn J. therefore awarded the Daughters 2/5ths of their claimed Costs, as well as an additional $15,000 for the Sons’ conduct during the proceedings.


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