Fraser, Watson AND Rowbotham JJA

10.31: Court-ordered costs award
14.88: Cost awards
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Parties sought directions with respect to the form of Judgment, Costs and security paid by the Appellant (“IFP”) following its Appeal. IFP sought Costs for both the Trial and Appeal on a solicitor-client basis. The Respondents argued that the Trial Judge should determine Costs for both the Trial, and Appeal after a determination on damages had been made; or alternatively, that the Court of Appeal only make a determination regarding Costs for the Appeal.

The Court held that it was not in a position to assess Trial Costs in this case, as the amount of the ultimate Judgment was still unknown. Further, the Trial Judge was in a better position to assess the Respondents’ claims for set off for expert fees since the expert evidence consumed considerable Trial time and resources. The Court noted, however, that Appeal Costs can be assessed despite the final Judgment amount being unknown, particularly since the Respondents acknowledged that the Judgment amount, once determined, would be greater than the $1.5 million contemplated by Column 5 of Schedule C.

IFP asserted it was entitled to solicitor-client Costs on account of a contractual provision in an agreement between the Parties. The Respondents argued that the same agreement also contained a limitation of liability provision which purported to cap the Respondents’ liability. The Court concluded that the interaction of the contractual provisions was best addressed by the Trial Judge. The Court observed that Rule 10.31 directs that Costs are at the discretion of the Court, and although a Court will generally exercise its discretion in accordance with a contractual provision which speaks to Costs, a Court is not obligated to do so.

Finally, the Court held that Costs for an Appeal are typically awarded on the same basis as Costs at Trial, though Rule 14.88 allows the Court of Appeal discretion in awarding Costs. The Court exercised its discretion and awarded Costs to IFP at 1.5 times Column 5 of Schedule C.

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