3.11: Service and filing of affidavits and other evidence in reply and response
3.8: Originating applications and associated evidence
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The parties could not agree on Costs following a contested morning Chambers Application in which the Respondent, Mr. Matthews, was successful. The Respondent argued that he should be entitled to Costs under tariff item 1(1) for filing an Affidavit, in addition to the Costs under tariff item 7(1) for the contested Application. Justice Veit stated that Schedule C employs a “block tariff” approach. Veit J. noted Rules 3.8 and 3.11 as examples where the Affidavits referred to in Schedule C item 1(1) are necessarily connected to the commencement documents or pleadings: an Affidavit must accompany an Originating Application, pursuant to Rule 3.8, and an Affidavit may be filed in lieu of a Statement of Defence in response to an Originating Application, pursuant to Rule 3.11. In this case, the Application was not a commencement document, and therefore, the Respondent was not entitled to Costs under tariff item 1(1).

The parties also disputed the appropriate Schedule C column upon which to calculate Costs. The Respondent argued that Costs should be calculated on column 3 since the Originating Application sought an Order that the proceeds of sale, valued at $180,000, be held in trust. The Applicant argued that the Application sought declaratory and injunctive relief; therefore, column 1 was appropriate because no monetary amount was claimed for.

Justice Veit held that, if the results of a declaration are clear and measurable, the Court may apply the appropriate monetary column. As such, Costs were awarded on column 3 since the declaration of trust was easily calculated at $180,000. Finally, the Respondent argued that Costs should be increased by a factor of 1.5% since he was given short notice of the Application. Veit J. held that, despite the formal Application being filed and served the day prior to the Hearing, the Respondent had been advised verbally of the intended Application within the time set in the Rules. Therefore, no increase in the Costs award was granted.

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