Nova Scotia Annotated Civil Procedure Rules

Part 16 - Costs, Order, and Enforcement

Rule 77 - Costs

Educational Notes

This Rule clarifies the awarding of costs but makes no major changes to the law. Costs remain at the discretion of the judge (R.77.02(2)). Costs generally follow the event (R.77.03(3)). Solicitor and client costs are awarded only in exceptional circumstances recognized by law (R.77.03(3)). The Tariffs still apply. Costs are still assessed by a judge or in the Small Claims Court.

Costs on motions, judicial review, and appeal are assessed in accordance with Tariff C. Costs in actions and applications are assessed in accordance with Tariff A, though it is likely only applications in court that will benefit from Tariff A. Costs of applications in chambers should arguably be dealt with under Tariff C, as is the current practice. Note that the wording of Tariff C still refers to an “Application heard in Chambers” rather than a motion.

Contingency fee agreements are addressed in R.77.14, which must be strictly complied with. Contingency fee agreements are now held in a sealed envelope by the lawyer and are not filed with the court.

The costs consequences of formal offers to settle are set out in R.10.

77.07 - Increasing or decreasing tariff amount

77.07 Increasing or decreasing tariff amount

(1)   A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs.

(2)   The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application:

(a)     the amount claimed in relation to the amount recovered;

(b)     a written offer of settlement, whether made formally under Rule 10 - Settlement or otherwise, that is not accepted;

(c)     an offer of contribution;

(d)     a payment into court;

(e)     conduct of a party affecting the speed or expense of the proceeding;

(f)       a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily;

(g)     a step in the proceeding a party was required to take because the other party unreasonably withheld consent;

(h)     a failure to admit something that should have been admitted.

(3)   Despite Rule 77.07(2)(b), an offer for settlement made at a conference under Rule 10 - Settlement or during mediation must not be referred to in evidence or submissions about costs.

Index Terms
  • Abuse of process as factor in adjusting tariff amount
  • Admission of fact, costs on unreasonable refusal to admit
  • Conduct of party as factor in adjusting tariff amount
  • Conduct of party as factor in adjusting tariff costs
  • Contribution offer, effect on costs
  • Costs (effect of contribution order on)
  • Costs consequences for abusive steps in proceeding
  • Costs consequences for improper denial of pleading
  • Costs determination
  • Costs on unreasonable refusal
  • Factors for increasing or decreasing costs in a proceeding
  • Factors in increasing or decreasing costs in a proceeding (Examples)
  • Improper, abusive or unnecessary steps as factors in adjustment of tariff amounts
  • Improper denial of pleading, costs consequences
  • Indemnity for expense caused by abuse
  • Offer of contribution in settlement proceeding
  • Of settled proceeding
  • Party's conduct as factor in adjusting tariff amount
  • Payment into court as factor in adjusting tariff amount
  • Proportionality of amount claimed to amount recovered as factor in adjusting tariff amount
  • Settlement offers, acceptance or rejection as factor in adjusting tariff amount
  • Settlement offers, disclosure in costs submissions
  • Settlement of proceeding
  • Tariff amounts increased or decreased
  • Unnecessary or improper expenses
  • Unreasonable withholding of consent as factor in adjusting tariff costs
  • Unreasonable withholding of consent as factor in increasing tariff costs

Annotations

The infant plaintiff sustained serious injuries in a school bus accident. After a more than 26 day trial with 51 witnesses (23 experts), the jury found the defendants not liable. Costs were in issue. The parties agreed the 2008 Rules and 1989 Tariffs applied. They agreed any cost award should be increased by 25 percent to take into account the defendant’s formal offer to settle that was rejected. The defendants sought costs under Scale 4, based on an amount involved of $4.3 million (the amount claimed at trial). They sought to have the current and previous litigation guardians held jointly liable for costs. The plaintiff felt costs should be awarded under Scale 2, based on an amount involved of $500,000 (the amount they estimated would have been awarded had the plaintiffs been successful). They argued costs should only be payable by the infant’s estate and not the litigation guardians. Held, Rule 77 applies; the 1989 Tariffs apply because they were the ones in effect when the action was started. This was a complex matter with a complicated trial. The amount involved is the full amount claimed at trial - a reasonable estimate of the range that would have been awarded had the plaintiffs been successful on liability. The appropriate scale is 4, with a 25 percent increase and no HST. Costs are payable by the infant’s estate only.

Full text: Marshall v. Annapolis County District School Board et al., 2010 NSSC 179