Civil procedure

Costs

Rule 14-1 – p.58

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  Costs are compensatory
  
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    Meant to encourage settlement, discourage frivolous lawsuits, censure inappropriate behavior, discourage unnecessary steps in litigation and of course, compensate the winner.
    
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    Costs are meant to be a partial indemnity to assist the successful party in offsetting the cost of litigation (wont’ be the full legal bill, but probs 30-50%)
    

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  Generally, costs follow the event <Rule 14-1(9)>. Whoever succeeds in the normal recourse that party will be entitled to cost
  
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  But sometime judges will make no order as to costs, as this power is discretionary.
  
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    Even when the party was successful, the court may decide that each party is going to bear their own costs and there will be no money order to exchange after
    
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    Often will see that if sympathetic self-represented litigants who are unsuccessful and lost the trial, court may appreciate that they are impecunious or have little financial resources and will relieve them to pay costs.
    
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  Costs thrown away - ordered when someone in litigation takes a wasteful step that puts the other party to an unnecessary expense.
  
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    Ex – making someone travel to attend an application when the party will stand up and ask for adjournment, when they have asked the party to caome ll the way down
    

Costs In The Cause = The costs of an application will be recoverable by the party who succeeds at the end of the action..

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  This occurs where an application was brought for some reasonable or necessary purpose and in bringing the application and receiving direction from court, both parties benefit as the matter is clarified
  

Plaintiff’s [or Defendants] costs in the cause = party who is awarded costs after the hearing or trial will recover the costs relating to the interlocutory application BUT will NOT recover if NOT successful
Costs In Any Event (of the cause) – on interlocutory application the party to whom such costs are awarded will have those interlocutory costs – no matter who succeeds in the action.
Costs Ordered Payable Forthwith – instead of waiting to total all costs at end of trial – can order that costs be paid upfront immediately.

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  Costs will be paid extremely quickly (within 1-2 weeks)
  
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  Example of where court is rebuking inappropriate or undesirable conduct
  

Advanced/Interim Costs – discretionary (and equitable) – one party has to put up the costs for both parties so that they can both pursue legal action [see p.11 up above]

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  Historically arose for case between 2 spouses
  
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  Saw it come up in Okanagan Indian Band – basically court invoked this so that people who had presumptive interests in things, could fight for them in courts of law
  
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    In Okanagan Indian Band – court essentially made gov’t (D) pay plaintiff’s lawyers to sue the gov’t
    
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    Thus, court re-created advance/interim costs model for public interests litigation
    

Pro Bono Costs – Victoria v. Adams
Special Costs – these are reserved to rebuke (discourage) inappropriate conduct

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  Are an attempt to force loser to pay for winner’s whole legal bill
  
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  HOWEVER, as a matter of fairness, the unsuccessful party (who has to pay costs) is entitled to disclosure of all solicitor-client work product
  
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    This is contentious because of solicitor-client privilege
    

Enhanced Cost – sits between ordinary costs and solicitor-client costs

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  Court is at discretion to make this order where special costs are not appropriate, but ordinary costs would amount to an injustice
  
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  Presumptive rule = costs would be awarded at 150% of normal party and party costs
  

Fee Shifting - Canada utilizes a partial fee shifting model. Loser shifts some of the costs of the litigation into the winner’s bank account.

Enhanced Costs – Appendix B of court rules. 2(5)

Between “Ordinary Party Costs (40-50%)” and “Substantial Indemnity (80-90%)”

Rule 2(5) – The court can multiple one of the three scale points by 1.5x if the normal scale would be grossly inadequate  Normally 150% of normal party costs

*Note: Costs follow the event under the rules

*Note: Successful party is presumed to have been awarded costs even where court is silent on issue. Must still award themselves cost when filing order with the court

Dupre v Patterson

[inadequate materials in a summary trial, judges are entitled to adjourn and punish via costs parties who submit inadequate materials]

FACTS

D was riding her bike in anticipation of completing a marathon. P hit her while she was driving along. P claimed that D was swerving and riding erratically. She claimed that once she calmed her shit down, she attempted to pass. Both riders though were essentially in the same lane with D on her own. Dupre broke her arm and claimed negligence against Patterson.

RATIO

Inadequate materials in a summary trial, judges are entitled to adjourn and punish via costs parties who submit inadequate materials.
When filing in a summary trial, you must provide materials appropriately that will help in the adjudication of the matter before the courts. Providing this info later may lead to it being dismissed. Courts do not want to proceed despite inadequate materials, but failure to follow the rules is not in the interest in the efficient and timely adjudication of matters.

ANALYSIS

Bitch was negligent no doubt. Otherwise, in paper trials, the rules must be obliged with as counsel cannot expect to just roll in and argue and have their case heard in a forum that is not designed for such behaviour. Even if the court does allow an adjournment, it might lead to costs consequences.