10.33: Court considerations in making costs award
10.41: Assessment officer’s decision

Case Summary

Justice Woolley considered, among other things, whether the Plaintiff was entitled to an award of solicitor-client Costs based on the conduct of the Defendant prior to and during litigation. Justice Woolley noted that while the Rules do not directly reference the effect of pre-litigation conduct on Costs Awards, Rule 10.33(1) references that a Court may consider “any other matter related to the question of reasonable and proper costs that the Court considers appropriate.”

Justice Woolley canvassed the relevant jurisprudence, and considered Rule 10.33, and noted that while there is still disagreement regarding the effect of pre-litigation conduct on an award of solicitor-client Costs, Justice Woolley considered the pre-litigation misconduct relevant to the determination, if not sufficient to ground the award on their own. Ultimately, Justice Woolley found that solicitor-client Costs were justified based on the Defendants’ improper conduct, which included taking unreasonable steps and adding complexity to the proceedings during litigation.

Justice Woolley further stated that, with an award of solicitor-client Costs, the Defendants were only required to pay Costs that were reasonably incurred by the Plaintiff and enumerated under Rule 10.41. Justice Woolley reduced the award of solicitor-client Costs to account for certain fees not reasonably incurred by the Plaintiff. 

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