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CIVIL PROCEDURE - Costs - Assessment or fixing of costs - Appeal or review - Particular orders - Special orders

Thursday, April 23, 2020 @ 7:51 AM  

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Appeal by the defendants from a decision dismissing their appeal of a registrar’s decision at an assessment hearing awarding the respondents special costs of various interlocutory orders made in the course of the proceedings and special costs of the assessment. The chambers judge ordered special costs of the appeal from the assessments. The respondents were successful at trial and were awarded special costs at trial. The parties brought 63 separate pre-trial applications over a five-year period. Except for one order, the pre-trial orders were silent as to the scale of costs. The registrar found that the actions were factually and legally complex and of much more than average difficulty to successfully litigate because the evidence of the fraud in this case was actively concealed and only discovered mid-trial. The registrar and chambers judge both held that special costs were to be assessed for all prior applications, notwithstanding that those applications were already the subject of costs orders. In effect they held that the trial judge’s cost order varied and overrode the earlier orders that had been made. The appellants argued that the trial judge’s order for special costs should not apply to interlocutory orders where the applicable order was unentered or silent as to costs or the costs assessment, and that the chambers judge erred in ordering special costs of the appeal without a finding of misconduct by the appellants on the appeal.

HELD: Appeal allowed in part. The order for special costs of the appeal was set aside. The order for special costs for the application for which the scale of costs had been fixed by the application judge was also set aside. A trial judge had no jurisdiction to vary prior cost orders. The trial judge’s cost order thus could not vary the earlier order that expressly addressed the scale of costs. The registrar had the power to assess costs regardless of whether the order was silent as to costs or had not been entered. He properly assessed all the interlocutory orders as special costs. While there was no general rule that a party was entitled to special costs of the cost assessment, the order of the trial judge that the cost of the proceedings was to be assessed as special costs, which was silent as to the cost assessment, extended to the costs of the cost assessment. The word “proceeding” referred to the whole event from the commencement of action by the issuance of the writ to the continuation of the trial and beyond. A registrar’s jurisdiction was limited to assessing costs on the basis ordered by the trial judge. A registrar was not permitted to reconsider or disregard the terms of a cost order. The registrar’s order granting the respondent special costs from the appellants in respect of the preparation for and conduct of the assessment was made without jurisdiction. In awarding the respondents special costs of the appeal, the chambers judge erred in principle. The review of the assessment was a separate matter from the assessment itself and did not form part of the proceedings captured by the trial judge’s cost order. There was no basis for awarding special costs.

Le Soleil Hospitality Inc. v. Louie, [2020] B.C.J. No. 289, British Columbia Court of Appeal, M.V. Newbury, P.M. Willcock, R. Goepel JJ.A., February 27, 2020. Digest No. TLD-April202020004