The Appellant sought a ruling on Costs against one Respondent after its Appeal was allowed in part. It also appealed the Costs Order resulting from the Trial of the underlying Decision.

The Court noted at the outset that Costs are presumptively awarded to the successful party to the Appeal, or the party that has achieved “substantial” success if success is mixed, pursuant to Rule 14.88. Both parties argued that they were each considerably or substantially successful on Appeal. The Court considered the parties’ positions and the result, and ordered that each party bear its own Costs of the Appeal.

With respect to the Appellant’s appeal of the Costs Order resulting from Trial, the Court of Appeal noted that it has jurisdiction to determine the Costs at Trial as a result of an Appeal, but due to the discretionary nature of Costs Awards, they are “generally extended considerable deference on appeal”. Further, where the outcome of an Appeal “substantially varies the result at trial, this Court may decide the issue of trial costs afresh”. 

At Trial, the Appellant had conceded that the Respondent was entitled to Costs pursuant to Column 5 of Schedule C, whereas the Respondent had argued it was entitled to solicitor-client Costs, or alternatively that a multiplier be applied to Column 5 of Schedule C. The Trial Judge held that enhanced Costs were appropriate given the complexity of the Action and improper litigation conduct on the part of the Appellant. On Appeal, the Court noted that the complexity of the issues had not changed but explained that the Trial Judge’s “conclusion as to litigation misconduct” deserved consideration. The Court of Appeal therefore held that the Respondent should receive Trial Costs in accordance with Column 5 of Schedule C.