How court costs are determined

Taus Shah wrote an interesting article on a June 2015 judgment by Justice Myers that was published on CanLII Saleh v Nebel, 2015 ONSC 3680.

Justice Myers begins his decision by outlining the relevant factors that are to be considered when awarding costs. The court notes that the winner of an action does not have a right to costs, but instead costs are completely within the discretion of the court (Lakew v. Munro, 2014 ONSC 7316).

The general rules regarding costs are as follow (as outlined in DUCA Financial Services Credit Union Ltd v. Bozzo, 2010 ONSC 4601):
"Costs follow the event" meaning that the costs are awarded based on the outcome of trial, i.e., loser pays
Costs are awarded on partial indemnity basis;
Costs are payable immediately, i.e., usually within 30 days.

The court also outlines several principles that are to be considered when awarding costs (as per Andersen v. St. Jude Medical Inc., 2006 2264 DLR (4th) 557), such as:
Discretion must be exercised in accordance with specific facts and circumstances of the case, in relation to factors in Rule 57.01(1);
It is appropriate to consider experience, rates charged and hours spent, but reasonableness is the overriding principle;
Another factor to consider is the unsuccessful party's reasonable expectation of the costs, which are to be fair and reasonable;
Courts should try to be consistent in awarding comparable awards;
Courts should balance the principle of indemnity with the fundamental objective of access to justice.

Using this framework, the court looks towards the outcome of trial and the failure of counsels to comply with the Pre-trial Case Management order, in order to determine the costs award.

top  contents  chapter  previous  next