10.26: Appeal to judge
10.27: Decision of judge

Case Summary

The Appellant brought a motion to strike a party-party Bill of Costs which had been allowed by the Assessment Officer. The Appellant lost an earlier Appeal of an Interlocutory Order of the Court of Queen’s Bench. No Costs were given at the Court of Queen’s Bench and the Court of Appeal’s Reasons were silent with respect to Costs. However, Costs were awarded to the Respondent pursuant to the Court’s Consolidated Practice Directions, Part H, as the Respondent was the winning party. Justice Côté noted that this Notice of Motion was similar to an Appeal from an Assessment of Costs under former Rule 655 (new Rule 10.26). As provided by Part 14 of the new Rules, the Court of Appeal’s analysis was based on the former Rules of Court.

The Appellant made the following complaints in support of the Appeal:

1.      No Certificate or Affidavit as to the correctness of the disbursements was sought by the Assessment Officer;

2.      The date of the Assessment was held on a day that the Appellant had informed the Court office that he was not available for; and

3.      The Assessment was unreasonably delayed.

Regarding the first complaint, Justice Côté noted that former Rule 630 calls for an Affidavit or Certificate as to the correctness of the disbursements sought; however, the Rules do not specify any fixed result for such an omission and the Court has the power to cure defects under former Rule 558. Further, no harm was caused by the omission because the Assessment Officer obtained receipts for the disbursements which were sufficiently strong evidence.

Justice Côté dismissed the Appellant’s argument about the date of Assessment because:

1.      It was unreasonable for the Appellant to refuse to attend on all Tuesdays and Thursdays of an entire university semester;

2.      Former Rule 632 expressly allowed the Assessment Officer to proceed with the Assessment, even if a party served did not show up; and

3.      The Appellant received sufficient notice of the Assessment and should have requested an adjournment if he objected to the date.

Regarding the delay of the Assessment, the Appellant relied on former Rules 244 and 244.4 which allowed for a party to move to dismiss an entire Action or have a timetable imposed on it. Justice Côté stated that these Rules applied prospectively, not retroactively. As such, this argument was dismissed because:

1.      There was no specific deadline breached;

2.      Any delays were reasonably explained;

3.      Former Rule 607 permitted Interlocutory Costs payable forthwith, but did not mandate it; and

4.      There was no evidence of prejudice to the Appellant from any delay.

The Assessment of Costs was confirmed and the Appeal dismissed.

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