10.2: Payment for lawyer’s services and contents of lawyer’s account
10.33: Court considerations in making costs award
14.27: Filing Extracts of Key Evidence
14.90: Sanctions

Case Summary

In the context of a series of Appeals and Cross-Appeals involving multiple Parties, Sunridge Nissan Inc. (“Sunridge”) and Ms. McRuer (“McRuer”) appealed the Trial Judge’s Costs Award. The Trial Judge awarded Sunridge indemnification of 10% of its incurred expenses (and 20% following service of a Formal Offer to Settle). The Trial Judge’s Costs Award took into account: Sunridge’s success being based on a limitation defence which could have been determined summarily, the aforementioned Formal Offer to Settle, and Sunridge’s unproven allegations of fraud against McRuer. After assessment by an Assessment Officer, Sunridge’s Costs Award amounted to approximately $28,000.

The Court of Appeal began its analysis by noting that Costs Awards are highly discretionary and afforded considerable deference on Appeal—a Costs Award should only be set aside if the Trial Judge made an error in principle or if the Costs Award is plainly wrong. The Court also noted that the awarding of Costs based on a percentage of solicitor and client fees involves the consideration of many factors, including those set out under Rules 10.2 and 10.33.

Ultimately, the Court stated that although a higher figure could have been awarded, it could not be said that the Costs Award was plainly wrong. The Court therefore dismissed the Appeal and Cross-Appeal.

With regard to the Costs of the Appeals and Cross-Appeals, the Court ordered Costs in Sunridge’s favour as the substantially successful Party. However, pursuant to Rule 14.90(1)(a)(ii), the Court refused to award Sunridge the Costs of preparing its Extracts of Key Evidence, as it had done so in a manner contrary to Rule 14.27(1).

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