4.29: Costs consequences of formal offer to settle
5.10: Subsequent disclosure of records
5.12: Penalty for not serving affidavit of records
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
10.41: Assessment officer’s decision

Case Summary

Following a Trial in a contractual dispute, the parties returned to argue Costs. The Plaintiff had been represented by counsel for only part of the litigation. The Defendant argued that the Plaintiff was only entitled to Costs for the time that it was represented by counsel, and was not entitled to Costs for any of the time that it was self-represented. McCarthy J. noted that Rule 10.29 provides that a successful party to an Application is entitled to Costs and that Rule 10.31(5) provides that, in appropriate circumstances, the Court may award Costs to a self-represented litigant for an amount part of or equal to the fees specified in Schedule C. McCarthy J. reviewed Rule 10.33, which lists considerations that a Court may take into account when making a Costs award. Justice McCarthy concluded that, given the circumstances, particularly the length of the Trial, the complicated facts, and the degree of conflict between the parties, the Plaintiff was entitled to Costs during the time it was self-represented in accordance with Rule 10.31(5).

McCarthy J. held that, despite the Formal Offers between the parties, an award of double Costs pursuant to Rule 4.29 was not appropriate. The Plaintiff also argued that the Defendant should be penalized for delay pursuant to Rule 5.12; specifically, for its failure to comply with Rule 5.10, which provides that a party must subsequently disclose records that it discovers in its possession that are relevant and material if it has not already disclosed them. McCarthy J. rejected this argument and did not find that the Defendant’s actions caused significant delay. Justice McCarthy also rejected the Plaintiff’s argument that they should be awarded inflation under Rule 10.41(3)(d) as this Rule deals with how an Assessment Officer may set Costs.

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