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

Case Summary

This was a Decision regarding Costs following a Trial. In the previous Trial Decision, Justice Devlin found that the Defendant had cause to terminate the Plaintiff, but the Defendant also owed the Plaintiff $36,912 for unpaid vacation entitlement. As such, the Plaintiff was partially successful following Trial and sought Costs. The Defendant also sought Costs, as it was successful in defending a large portion of the Plaintiff’s original claim.

Justice Devlin noted that Costs are awarded as compensation and are highly discretionary. Pursuant to Rule 10.29, the successful party is normally entitled to Costs. Justice Devlin considered the Trial in its entirety and determined the successful party to be the Plaintiff.

Justice Devlin relied on item 1(3)(b) under the Framework of Schedule C, which dictates that the column for a Costs Award against a Defendant is determined by the amount recovered, not the amount claimed. As the Plaintiff was awarded $36,912, this put the Costs Award in Column 1 of Schedule C.

Justice Devlin then turned to Rule 10.33 to determine the appropriate factors applicable in making the Costs Award. Justice Devlin found that the Trial should have been shorter, and that part of the blame for the length of the Trial sat with the Plaintiff. His Lordship then reduced the Costs Award for the extra Trial time on the Plaintiff’s unsuccessful portion of his claim, namely two and a half days. Pursuant to item 1(3)(b) under the Framework of Schedule C, the reduction was calculated on Column 3 to reflect the unsuccessful amount claimed by the Plaintiff.

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