4.24: Formal offers to settle
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Appellants, a group of Plaintiffs, were successful in their Appeal and in having the Respondents’ Cross-Appeal dismissed. The parties sought a determination with respect to Costs for Trial and for the Appeal.

The Court of Appeal held that awarding Costs to the Appellants was appropriate as they were successful, and the factors which would militate against Costs did not arise at Trial or on Appeal. The key issue was whether the Court should award enhanced Costs above the tariffs prescribed by Column 5 in Schedule C. The Court of Appeal referred to Rules 10.31 and 10.33, noting the Court’s discretion in awarding Costs and the factors the Court may consider when doing so. The Court of Appeal observed that a multiplier may be applied when the Trial is long and complex and the quantum of damages claimed is significantly greater than $1.5 million. Generally, the Courts recognize that, where the amount in dispute greatly exceeds Column 5, Schedule C is deficient and a multiplier may be applied. However, the courts must be careful not to avoid over-indemnifying the successful party. Given the Action’s complexity, a multiplier of two times the Column 5 tariff was granted. Further, the Appellants bested a Formal Offer made before Trial and, as such, were awarded double Costs for the Trial from the time of the Formal Offer.

In addition, the Appellants bested two informal Offers before the Appeal. The Respondents argued that double costs did not apply, relying on Rule 4.24 which requires Formal Offers to use Form 22 and be unconditional. The Respondents contended that the informal Offers were conditional on approval and were merely invitations to treat. The Court of Appeal acknowledged that these informal Offers were conditional, but there were indications that acceptance would have led to approval by all of the Appellants. These Offers were a sincere attempt to settle the dispute and, as such, the Appellants were awarded double Costs for the Appeal for the steps taken after the informal Offers.

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