9.35: Checking calculations: assessment of costs and corrections
10.44: Appeal to judge

Case Summary

The Plaintiff in a foreclosure matter first obtained a Redemption Order and submitted a related Bill of Costs which was assessed and filed. A Supplemental Bill of Costs was submitted at the end of the foreclosure process pursuant to the Order Confirming Sale and Vesting Title (“Vesting Order”). The Vesting Order awarded Costs on a solicitor and client basis; however, the Assessment Officer questioned certain fees and expenses on the Bills of Costs. The Plaintiff applied to review and settle Costs, or for further directions pursuant to Rule 9.35(4).

Master Schulz confirmed that an “Order” referred to in Rule 9.35(4) includes the determination of the Assessment Officer, together with the subsequent filing of the Bill of Costs. The normal practice is to file one Bill of Costs at the end of the Action. Since the first Bill of Costs was filed with the Redemption Order, Master Schulz could only address issues arising out of the second unfiled Supplemental Bill of Costs for the Vesting Order. Master Schulz noted that the Bill of Costs for the Redemption Order should have been appealed pursuant to Rule 10.44.

The foreclosure Application only requested “costs of this Action”. Master Schulz stated that the general rule is that a party is only entitled to what it asks for in the Application, but due to representations of Plaintiff’s counsel, the Vesting Order awarded solicitor and client Costs. Master Schulz held this was appropriate, particularly given that the Vesting Order is a final Order which can only be changed in limited circumstances.

Master Schulz stated that counsel should ensure proper evidence is before the Assessment Officer or Court, including evidence of payment or the client’s undertaking to pay. The Assessment Officer had rejected a disbursement for a skip tracer under the first Bill of Costs for the Redemption Order. The Plaintiff then included this disbursement on the Bill of Costs for the Vesting Order. Master Schulz held that: (i) the explanation for this disbursement given by the Plaintiff was sufficient; and, (ii) claiming this disbursement was not an attempt to circumvent an appeal under Rule 10.44 with respect to the first Bill of Costs. All other disbursements were allowed as claimed.

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