10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision following an Application Judge’s Decision on an Application brought by the Respondent for the Applicant’s breach of the obligation to produce a satisfactory Affidavit of Records, breach of the implied undertaking rule, and the Appeal from that Decision (the “Appeal Decision”).

The Applicant in the underlying proceeding sought party-party Costs on Column 2 of Schedule C of the Rules and a reduction of $1,000.00 in the fees payable because the Respondent failed to provide his proposed Bill of Costs in a timely fashion.

The Respondent in the underlying proceeding sought enhanced Costs and argued that (1) the Applicant’s improper conduct necessitated the Application and the Appeal; (2) the Appeal was more complex as new evidence and new issues were involved and argued; (3) the issues considered in the Appeal were important; and (4) while the Respondent did not Appeal the Applications Judge’s Costs Award, the Court has jurisdiction to impose enhanced Costs in light of the Applicant’s litigation misconduct (abusive and disrespectful communications). The Respondent also sought a stay of the Applicant’s Action until any Costs awarded in relation to the Appeal Decision were paid.

The Court rejected the Respondent’s request for additional Costs arising from what the Respondent described as a failure of the Applications Judge to account for the Applicant’s litigation misconduct, and held that the Justice who hears the Trial in a matter is at liberty to address a broader spectrum of litigation behaviour and to award Costs accordingly. The Court also rejected the reduction requested by the Applicant.

In the result, the Court awarded the Respondent Costs of the Appeal, pursuant to line item 8(1) of Column 2 of Schedule C, and declined to order a stay of the Applicant’s Action until the Costs Award was paid

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