BrownE J

9.35: Checking calculations: assessment of costs and corrections
10.2: Payment for lawyer’s services and contents of lawyer’s account
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.41: Assessment officer’s decision

Case Summary

The Plaintiff appealed a Master’s Decision which reviewed an Assessment Officer’s Decision in a foreclosure Action. The issue was whether the Master erred in upholding the Assessment Officer’s Decision to award lower Costs than the solicitor-client Costs sought by the Plaintiff. The Plaintiff had appeared before the Master under Rule 9.35(4) seeking a review of the Assessment Officer’s Decision. Browne J. observed that the Rules set out the framework for the review of Costs Decisions in a foreclosure matter. Under Rule 9.35, the Assessment Officer must assess the reasonable and proper costs pursuant to Rule 10.41. The Assessment Officers’ task in reviewing Costs is to determine the reasonableness of the Costs which have been submitted.

Justice Browne noted that, pursuant to Rule 9.35(3), if the Plaintiff disagrees with the Assessment Officer’s initial assessment of Costs, it may ask that the assessment be amended or corrected. Under Rule 9.35(4), if the Plaintiff is not satisfied with the Assessment Officer’s Decision under Rule 9.35(3) it may re-attend before the Master or Judge who granted the foreclosure Order to settle the Costs.

Rule 10.2(1) provides some factors which assist in determining which Costs were reasonable, including: the nature, importance and urgency of the matter; the client’s circumstances; the manner in which the services are performed; and the skill, work and responsibility involved. Justice Browne observed that Rule 10.41 provides that a written agreement may expressly provide for a different basis for recovering Costs including full indemnification. Justice Browne concluded that the Master erred by not enforcing the full indemnity clause in the mortgage. The Appeal was allowed and the Plaintiff was entitled to Costs on a full solicitor-client basis.

The Plaintiff also sought Costs for applying to the Master to review the Assessment Officer’s Decision, and in appealing the Master’s Decision. Justice Browne noted that a successful party is entitled to Costs and, ordinarily, a successful party can claim for Costs incurred in an assessment of Costs before the Court or before an Assessment Officer pursuant to Rule 10.31(2)(b). However, Justice Browne declined to order Costs related to the review taken from the Assessment Officer and the Appeal from the Master.

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