This was an Appeal under Rule 10.44 from an Assessment Officer’s Decision certifying a Bill of Costs submitted by the Respondent following an award of solicitor-and-own-client Costs. The Appellants argued they were denied procedural fairness because the Bill of Costs contained insufficient disclosure, including redacted descriptions of work and the identification of legal personnel by initials only.

The Court considered Rule 2.24 and rejected the argument that only one lawyer of record meant only one person could be compensated. The Rule defines “lawyer of record” for procedural purposes and does not limit recovery for work done by others in the same firm. The Court confirmed that junior counsel, articling students, and legal staff may be included in the Bill of Costs if their roles are adequately disclosed.

The Appellants sought to invoke Rule 3.61 to compel particulars of the identities and work of those listed in the Bill of Costs, but the Court held that Rule 3.61 does not apply, as the Bill of Costs is not a pleading. Rule 5.11 was also raised in support of production of unredacted material, but the Court held that it was inapplicable, as there was no Affidavit of Records and the standard discovery regime did not govern cost assessments.

Following a direction from the Court of Appeal, the parties attended a Rule 4.10 case conference to determine how the Appeal should proceed. That conference resulted in a procedural order narrowing the issues on Appeal and limiting the scope of argument.

In assessing the Bill of Costs, the Court confirmed under Rule 10.31 that solicitor-and-own-client costs must still be “reasonable and proper.” The Court emphasized that this standard requires sufficient disclosure to allow the opposing party to meaningfully test the reasonableness of claimed costs. Applying Rule 10.33, the Court considered the complexity of the litigation, the conduct of the parties, and the nature of the proceedings in concluding that the disclosure provided was inadequate.

The Court found that the Assessment Officer failed to exercise his discretion under Rule 10.38 to compel adequate particulars and failed to consider whether to refer the matter to the Court under Rule 10.39. While that referral power is discretionary, the failure to use it contributed to the procedural unfairness.

The Court held that the assessment conducted under Rule 10.41 was procedurally unfair. Although the Assessment Officer reviewed an unredacted version of the Bill of Costs, the Appellants were not afforded a fair opportunity to test the claims, undermining the integrity of the process.

Pursuant to Rule 10.45, the matter was remitted to a different Assessment Officer. The Respondent was ordered to provide a revised Bill of Costs disclosing the working titles, qualifications, and descriptions of legal work performed by each of the 32 individuals, with redactions limited to what is necessary to preserve legitimate privilege. Full names were not required.