10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

The Plaintiff’s Application for a permanent Injunction to prevent the Defendant from selling its properties to satisfy tax debts was dismissed (the “Application”). The Court now proceeded to consider the appropriate Costs disposition.

Hollins J. noted that Rule 10.29 requires the Court to start with the assumption that a successful party is entitled to their Costs, subject to the Court’s discretion. Hollins J. then moved on to consider the most relevant factors set out in Rule 10.33, namely, the result of the dismissal of the Application and the Defendant’s settlement offer (the “Settlement Offer”).

Hollins J. commented that the dismissal of the Application disposed of essentially all the issues in the lawsuit. Therefore, it would be unfair to the Defendant to have to wait to collect any Costs. As such, the Costs should not be in the cause.

Hollins J. further noted that the Plaintiff refused the Defendant’s Settlement Offer to suspend its attempts to proceed with the sale of the Plaintiff’s properties if 1) the Plaintiff provides its bank’s corroboration of the Plaintiff’s excuse for missing its tax payment, 2) the Plaintiff pays its overdue taxes, and 3) the Plaintiff discontinues the Action.

Hollins J. commented that while the first condition was somewhat unusual, it made sense in light of the Defendant’s evidence. Further, the Settlement Offer explicitly referred to the Cost consequences of refusing it. Hollins J. further commented that the Plaintiff ought to have accepted the Settlement Offer or at least brought its taxes current to avoid the sale of the properties while retaining the ability to dispute the tax debt.

Having noted that the Application required cross-examinations and Briefs, and that Column 1 of Schedule C would not adequately capture the work done nor the quantum of value at issue, Hollins J. held that the Defendant was entitled to approximately 35% of its Costs, payable forthwith.

View CanLII Details