TERRIGNO v CELMAINIS

This decision arose from an Application by the Plaintiff to vary a prior costs decision before the corresponding Order had been entered. In the underlying proceeding, the Court had granted the Defendants’ disqualification Application and awarded them costs, including costs under item 1(1) of Schedule C of the Rules for “commencement documents, affidavits, pleadings and related documents”. The Plaintiff subsequently applied pursuant to Rule 9.13 to correct the Costs Award on the basis that Application materials and supporting Affidavits do not fall within the scope of item 1(1).

Justice Malik considered the scope of Rule 9.13 and confirmed that the Rule grants the Court broad authority to vary a Judgment or Order before entry where there is a “plain and manifest error”. The Court emphasized that Rule 9.13 should be exercised sparingly, but may appropriately be invoked to correct errors of law and avoid unnecessary and costly Appeals. Malik J. also reviewed the “block tariff approach” to Schedule C Costs and confirmed that commencement documents under item 1(1) are distinct from materials filed later in litigation, including Notices of Application and supporting Affidavits, which instead fall within item 8(1).

Applying these principles, the Court held that it had erred in awarding costs under item 1(1) for the preparation of the Defendants’ Applications and supporting Affidavits. Although the Defendants argued the Award was proportionate and reasonable given the complexity of the Applications, the Court concluded that the prior Award was inconsistent with the established interpretation of Schedule C. Justice Malik therefore amended the earlier Costs Award pursuant to Rule 9.13 and directed that no costs were payable under item 1(1).