Following a matrimonial property and spousal support Trial, the Plaintiff sought Costs on Column 3 of Schedule C, including for the Interlocutory Applications for which the Plaintiff had previously been awarded Costs on a lower scale.

The Defendant asserted that no costs were payable because most issues had been resolved prior to Trial, and the Parties had mixed success. Alternatively, the Defendant argued that Column 1 of Schedule C was the appropriate Column. Justice Macklin held that the Trial was still necessary to bring the matter to resolution, and thus, Costs were appropriate. Justice Macklin noted that a result where the Plaintiff did not obtain the full sum sought did not constitute ‘mixed success’. Denying Costs would penalize the Plaintiffs for advancing Claims for damages which were greater than what was ultimately awarded. The Parties were found to have had mixed success on the matrimonial property issues, but Justice Macklin held that the Plaintiff was more successful on balance.

Regarding the Plaintiff’s claim to additional Costs from Interlocutory Applications on which Costs Awards had already been given, Justice Macklin held that the amount awarded at the time of the Application was all the Plaintiff was entitled to recover. Regarding the appropriate column of Schedule C, Justice Macklin noted that the comments to Schedule C make it clear that a successful litigant is entitled to Costs on at least Column 1, but the Court always has discretion to determine appropriate Costs in any particular case, and the Court is not bound by Schedule C.

Despite the fact that the total sum of the amount awarded to the Plaintiff was unknown at the time of the Costs Decision, because the spousal support claim was ongoing, Justice Macklin held that the Court could be confident that the total amount would exceed $50,000, but not that it would necessarily exceed $100,000. Thus, the Court held that Column 2 of Schedule C was appropriate. Justice Macklin also held that no inflationary factor should be applied to the Schedule C amounts as the Plaintiff did not establish that the Schedule C amounts were inordinately low due to inflation. The Plaintiff was awarded Costs on Column 2 for all steps in the litigation up to and including the Trial, but excepting the Interlocutory Applications for which Costs Awards had already been granted.