BEREZAN v CHIZAWSKY

This Decision addressed the appropriate quantum of Costs following two urgent Chambers Applications arising out of stayed family property litigation after the death of one party. In the underlying Applications, the Applicant was largely successful, including regaining possession of jointly owned property and defeating a Cross-Application.

Justice McLeod reaffirmed that Costs are discretionary under Rules 10.29, 10.31, and 10.33 and must be fixed judicially, having regard to the circumstances of the case. While solicitor-client or near solicitor-client Costs are reserved for rare and exceptional circumstances, elevated tariff Costs may be awarded where urgency or conduct justifies departure from the ordinary scale. Relevant considerations included the degree of success, necessity and urgency of the Applications, and the conduct of the parties.

Applying those principles, Justice McLeod found the Applicant had little choice but to proceed urgently after being excluded from jointly owned property and to respond to an ultimately unsuccessful Cross-Application. Although the Respondent’s unilateral conduct was criticized, it did not rise to the level warranting solicitor-client Costs. The Court also rejected the request that Costs be payable personally rather than from the Estate.

In the result, the Court awarded elevated Costs equal to three times the applicable tariff for a contested Chambers Application under Schedule C.