The Civil Rules Committee has approved in principle the adoption of a new scheme for awarding costs based on a “grid system.” This consultation paper describes the scheme and invites comments from the bench, the bar, and the public.
Under the proposed grid system, a judge will fix costs at the end of a hearing while retaining the right to order an assessment in exceptional cases. The judge’s award of costs will be based on a grid that sets out hourly rates. This cost grid replaces Part A of the Tariff of Costs. The grid provides rates for both party and party costs, which will now be known as “partial indemnity” costs and solicitor and client costs, which will now be known as “substantial indemnity costs.” The rates set out in the grid will apply to all steps in the proceeding. At the end of a hearing of a trial or application, the successful litigant will submit a “running Bill of Costs” with information about the hours expended by the lawyers involved in the case.
The grid will also be used for interlocutory motions, and the presumptive rule is that costs of a motion are payable forthwith. A “running Bill of Costs” is not required for interlocutory motions, although the parties may decide to provide one.
If the judge exercised his or her discretion to order an assessment of costs by an assessment officer, the assessment will be based on the grid.
The Rules of Civil Procedure will provide a cost grid that will apply in the absence of any regional costs grid. (Regional bench and bar committees may apply to the Civil Rules Committee for the enactment of a costs grid for their region.)
Several rules must be amended to implement the cost grid scheme. The major rule changes are noted below. The changes to the Rules are noted by underlining or striking over the text.
“partial indemnity costs” mean costs awarded under the partial indemnity scale of a cost grid established by Part I of Tariff A and “on a partial indemnity basis” has a corresponding meaning;“substantial indemnity costs” mean costs awarded under the substantial indemnity scale of a cost grid established by Part I of Tariff A and “on a substantial indemnity basis” has a corresponding meaning;“Party and Party”
(4) If a statute, regulation or other document refers to party and party costs, these rules apply as if the reference were to partial indemnity costs.“Solicitor and Client Costs”
(5) If a statute, regulation or other document refers to solicitor and client costs, these rules apply as if the reference were to substantial indemnity costs.
if the mortgage so provides, or if it provides for costs on a solicitor and client basis
Fixing Costs: Tariffs
When the court awards costs, it shall fix them in accordance with the Tariffs and any cost grid.Assessment in Exceptional Cases(3.1)
Despite subrule (3), in an exceptional case the court may refer costs for assessment under Rule 58.Bill of Costs57.01
(5) After a trial or the hearing of an application, a party who seeks an award of costs shall serve a bill of costs on the other parties and shall file it, with proof of service, at the hearing at which the costs are to be fixed or assessed.(6) The bill of costs shall contain,(a) a statement of the amounts claimed for fees and disbursements;
(b) a statement of the years of experience in practice of each lawyer with respect to whom a claim for fees is being made;
(c) in connection with the claim for fees, copies of the dockets; and
(d) in connection with the claim for disbursements, copies of the invoices.Contested Motion
the court is satisfied that the motion ought not to have been made or opposed, as the case may be,
unless the court is satisfied that a different order would be more just,
order the costs of the motion to be paid forthwith after assessment
exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid forthwith after assessment.
Where party and party
Administration of Justice Act
Students-at-law and law clerks
58.05 (2) Where students-at-law or law clerks have rendered services of a nature that the Law Society of Upper Canada authorizes them to render, the fees for those services shall be assessed and allowed at one-half the amount that would have been allowed under the Tariffs.
party and party
Solicitors’s Fees and Disbursements Allowable Under Rule 58.05
In the absence of a cost grid made to apply to a particular judicial region, the following cost grid shall apply.
Where students-at-law or law clerks have rendered services of a nature that the Law Society of Upper Canada authorizes them to render, the fees for those services may be assessed and allowed under this Tariff.
Certificate of Assessment of Costs
I certify that I have assessed the party and party costs of (identify party) in this proceeding . . . .