Renke J

10.33: Court considerations in making costs award

Case Summary

In the underlying Decision, Justice Renke dismissed the Plaintiff’s Appeal from a previous Arbitration Award (the “Appeal”). The Defendant sought Costs of the Appeal on a solicitor-client basis in accordance with Article 10.3 of a share purchase agreement between the Defendant and the corporate predecessor of the Plaintiff (the “SPA”). Alternatively, the Defendant sought Costs on a multiple of two or three times Column 5 of Schedule C.

Renke J. noted that a contract providing for a different scale of Costs is a recognized as an exception to the general rule that Costs are presumptively assessed on Schedule C. Justice Renke reviewed Article 10.3 of the SPA but concluded that the conduct of the Parties did not fall into the enumerated heads of indemnity found within the SPA.

Renke J. considered awarding multiples of Costs under column 5 of Schedule C of the Rules. His Lordship noted that Courts generally rely upon the considerations under Rule 10.33, including: (1) complexity of the Action, (2) if the amount in dispute significantly exceeds the $1.5 million threshold; or (3) whether the conduct of one of the Parties warrants a multiplier.

Justice Renke found that the amount at issue in the Appeal was about $1.7 million and that this sum did not significantly exceed the Column 5 threshold. Additionally, neither the complexity of the Action nor the conduct of the Parties was sufficient to warrant Costs at a multiple of Column 5. Justice Renke awarded the Defendant Costs assessed on a party-party basis under Schedule C with no multipliers.

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