10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Court, after a Trial involving many different parties, addressed the issue of Costs. The Plaintiffs had been largely successful while the Defendants by Counterclaim were entirely successful. The Court stated at the outset that the parties are presumptively due Schedule “C” Costs in accordance with Rule 10.29. The Court also noted that it has broad authority under Rule 10.31 to vary the amount suggested in Schedule “C” to account for numerous factors listed in Rule 10.33 including the conduct of parties to litigation. The Court then considered whether to award elevated Costs.

Thomas J. summarized the case law principles governing elevated Costs. His Lordship confirmed that full indemnity Costs are awarded in exceedingly rare cases in civil litigation, where a contract specifically allows for them to be claimed. Moreover, solicitor and client Costs are also rare. They are only to be awarded where there is a finding of intentional misconduct. The Court also has full authority to award Costs based on a different column of Schedule “C” or based on a multiple of Schedule “C” Costs. Enhanced Costs can be justified “where the conduct of the litigant falls short of what is expected of a responsible litigant.” Furthermore, the use of a multiplier may be appropriate to reflect the amount and complexity of the claim.

The Court determined that the contract in issue allowed for solicitor and client Costs to be awarded to the Plaintiffs because it allowed for recovery of “reasonable attorneys’ fees and expenses.” However, the Court still assessed whether enhanced Costs could be awarded if this finding was in error. In the case of the Plaintiffs, Thomas J. found that a multiplier of 2.5 times the Schedule “C” amount would be appropriate given the amount and complexity of the Action.

With regards to the Defendants by Counterclaim, Thomas J. ruled that Costs based on a multiplier of 3.5 times the Schedule “C” amount was warranted because the Defendants’/Plaintiffs by Counterclaim’s conduct “fell short of what is expected of a responsible litigant.” They had included certain parties in the litigation without any basis for doing so.

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