COSTS
RULE 56 SECURITY FOR COSTS
WHERE AVAILABLE
56.01 (1) The court, on motion by the defendant or respondent in a proceeding, may make such order for security for costs as is just where it appears that,
(a) the plaintiff or applicant is ordinarily resident outside Ontario;
(b) the plaintiff or applicant has another proceeding for the same relief pending in Ontario or elsewhere;
(c) the defendant or respondent has an order against the plaintiff or applicant for costs in the same or another proceeding that remain unpaid in whole or in part;
(d) the plaintiff or applicant is a corporation or a nominal plaintiff or applicant, and there is good reason to believe that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent;
(e) there is good reason to believe that the action or application is frivolous and vexatious and that the plaintiff or applicant has insufficient assets in Ontario to pay the costs of the defendant or respondent; or
(f) a statute entitles the defendant or respondent to security for costs.
(2) Subrule (1) applies with necessary modifications to a party to a garnishment, interpleader or other issue who is an active claimant and would, if a plaintiff, be liable to give security for costs.
DECLARATION OF PLAINTIFF'S OR APPLICANT'S PLACE OF RESIDENCE
56.02 The solicitor for the plaintiff or applicant shall, forthwith on receipt of a demand in writing from any person who has been served with the originating process, declare in writing whether the plaintiff or applicant is ordinarily resident in Ontario and, where the solicitor fails to respond to the demand, the court may order that the action or application be stayed or dismissed.
MOTION FOR SECURITY
56.03 (1) In an action, a motion for security for costs may be made only after the defendant has delivered a defence and shall be made on notice to the plaintiff and every other defendant who has delivered a defence or notice of intent to defend.
(2) In an application, a motion for security for costs may be made only after the respondent has delivered a notice of appearance and shall be made on notice to the applicant and every other respondent who has delivered a notice of appearance.
AMOUNT AND FORM OF SECURITY AND TIME FOR FURNISHING
56.04 The amount and form of security and the time for paying into court or otherwise giving the required security shall be determined by the court.
FORM AND EFFECT OF ORDER
56.05 A plaintiff or applicant against whom an order for security for costs (Form 56A) has been made may not, until the security has been given, take any step in the proceeding except an appeal from the order, unless the court orders otherwise.
DEFAULT OF PLAINTIFF OR APPLICANT
56.06 Where a plaintiff or applicant defaults in giving the security required by an order, the court on motion may dismiss the proceeding against the defendant or respondent who obtained the order, and the stay imposed by rule 56.05 no longer applies unless another defendant or respondent has obtained an order for security for costs.
AMOUNT MAY BE VARIED
56.07 The amount of security required by an order for security for costs may be increased or decreased at any time.
NOTICE OF COMPLIANCE
56.08 On giving the security required by an order, the plaintiff or applicant shall forthwith give notice of compliance to the defendant or respondent who obtained the order, and to every other party.
SECURITY FOR COSTS AS TERM OF RELIEF
56.09 Notwithstanding rules 56.01 and 56.02, any party to a proceeding may be ordered to give security for costs where, under rule 1.05 or otherwise, the court has a discretion to impose terms as a condition of granting relief and, where such an order is made, rules 56.04 to 56.08 apply with necessary modifications.
RULE 57 COSTS OF PROCEEDINGS BETWEEN PARTY AND PARTY
GENERAL PRINCIPLES
Factors in Discretion
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing,
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest
or defended by a different solicitor; and
(i) any other matter relevant to the question of costs.
Costs Against Successful Party
(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.
Costs may be Fixed or Assessed
(3) In awarding costs, the court may fix all or part of the costs with or without
reference to the Tariffs.
(3.1) Despite subrule (3), in an exceptionable case the court may refer costs for assessment.
Authority of Court
(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act.
(a) to award or refuse costs in respect of a particular issue or part of a proceeding;
(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding; or
(c) to award all or part of the costs on a substantial indemnity basis.
DIRECTIONS TO ASSESSMENT OFFICER
57.02 (1) Where costs are to be assessed, the court may give directions to the assessment officer in respect of any matter referred to in rule 57.01.
(2) The court shall record,
(a) any direction to the assessment officer;
(b) any direction that is requested by a party and refused; and
(c) any direction that is requested by a party and that the court declines to make but leaves to the discretion of the assessment officer.
COSTS OF A MOTION
Contested Motion
57.03 (1) Where, on the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall,
(a) fix the costs of the motion and order them to be paid within 30 days; or
(b) in an exceptional case, refer the costs of the motion for assessment under subrule (1) and order them to be paid within 30 days after assessment.
(2) Where a party fails to pay the costs of a motion as required under subrule (1), the court may dismiss or stay the party's proceeding, strike out the party's defence or make such other order as is just.
Motion Without Notice
(3) On a motion made without notice, there shall be no costs to any party, unless the court orders otherwise.
COSTS ON SETTLEMENT
57.04 Where a proceeding is settled on the basis that a party shall pay or recover costs and the amount of costs is not included in or determined by the settlement, the costs may be assessed under Rule 58 on the filing of a copy of the minutes of settlement in the office of the assessment officer.
COSTS WHERE ACTION BROUGHT IN WRONG COURT
Recovery within Monetary Jurisdiction of Small Claims Court
57.05 (1) If a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs.
(2) Subrule (1) does not apply to an action transferred to the Superior Court of Justice under section 107 of the Courts of Justice Act.
Default Judgment within Monetary Jurisdiction of Small Claims Court
(3) If the plaintiff obtains a default judgment that is within the monetary jurisdiction of the Small Claims Court, costs shall be assessed in accordance with that court's tariff.
Proceeding Dismissed for Want of jurisdiction
(4) Where a proceeding is dismissed for want of jurisdiction, the court may make an order for the costs of the proceeding.
COSTS OF LITIGATION GUARDIAN
57.06 (1) The court may order a successful party to pay the costs of the litigation guardian of a party under disability who is a defendant or respondent, but may further order that the successful party pay those costs only to the extent that the successful party is able to recover them from the party liable for his or her costs.
(2) A litigation guardian who has been ordered to pay costs is entitled to recover them from the person under disability for whom he or she has acted, unless the court orders otherwise.
LIABILITY OF SOLICITOR FOR COSTS
57.07 (1) Where a solicitor for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default, the court may make an order,
(a) disallowing costs between the solicitor and client or directing the solicitor to repay to the client money paid on account of costs;
(b) directing the solicitor to reimburse the client for any costs that the client has been ordered to pay to any other party; and
(c) requiring the solicitor personally to pay the costs of any party.
(2) An order under subrule (1) may be made by the court on its own initiative or on the motion of any party to the proceeding, but no such order shall be made unless the solicitor is given a reasonable opportunity to make representations to the court.
(3) The court may direct that notice of an order against a solicitor under subrule (1) be given to the client in the manner specified in the order.
RULE 58 ASSESSMENT OF COSTS
GENERAL
58.01 Where a rule or order provides that a party is entitled to the costs of all or part of a proceeding and the costs have not been fixed by the court, they shall be assessed in accordance with rules 58.02 to 58.13.
WHO MAY ASSESS COSTS
General Rule
58.02 (1) Costs shall be assessed by an assessment officer, subject to subrule (2), in the place where the proceeding was commenced or heard or in a county agreed on by the parties.
Reference
(2) The costs of a reference may be assessed by an assessment officer or by the referee, and for the purposes of rules 58.03 to 58.13, the referee shall be deemed to be an assessment officer.
ASSESSMENT AT INSTANCE OF PARTY ENTITLED
By Filing Bill of Costs and Obtaining Appointment
58.03 (1) A party entitled to costs may obtain a notice of appointment for assessment of costs (Form 58A) from the appropriate assessment officer on filing a bill of costs and a copy of the order or other document giving rise to the party's entitlement to costs with the assessment officer.
(2) The notice and the bill of costs shall be served on every party interested in the assessment at least seven days before the date fixed for the assessment.
ASSESSMENT AT INSTANCE OF PARTY LIABLE
By Obtaining Appointment and Serving Notice
58.04 (1) Where a party entitled to costs fails or refuses to file or serve a bill of costs for assessment within a reasonable time, any party liable to pay the costs may obtain a notice to deliver a bill of costs for assessment (Form 58B) from the appropriate assessment officer.
(2) The notice shall be served on every party interested in the assessment at least twenty-one days before the date fixed for the assessment.
Delivery of Bill of Costs
(3) On being served with the notice, the person required to deliver a bill of costs shall file and serve a copy of the bill on every party interested in the assessment at least seven days before the date fixed for the assessment.
Failure to Deliver Bill of Costs
(4) Where a party required to deliver a bill of costs for assessment fails to do so at the time set out in the notice and thereby prejudices another party, the assessment officer may fix the costs of the defaulting party at an appropriate sum in order to prevent further prejudice to the other party.
ASSESSMENT IN ACCORDANCE WITH TARIFFS
Generally
58.05 (1) If costs are to be assessed, the assessment officer shall assess and allow,
(a) solicitors' fees and disbursements in accordance with subrule 57.01(1) and the Tariffs; and
(b) disbursements for fees paid to the court, a court reporter, an official examiner or a sheriff under the regulations under the Administration of Justice Act,
(2) No other fees, disbursements or charges shall be assessed or allowed unless the court orders otherwise.
Disbursements
(3) No disbursements other than fees paid to the court shall be assessed or allowed unless it is established by affidavit or by the solicitor appearing on the assessment that the disbursement was made or that the party is liable for it.
Directions
(4) An assessment officer may direct production of books and documents and give directions for the conduct of an assessment.
Set Off of Costs
(5) Where parties are liable to pay costs to each other, the assessment officer may adjust the costs by way of set off.
Costs of Assessment
(6) The assessment officer may, in his or her discretion, award or refuse the costs of an assessment to either party, and fix those costs.
FACTORS TO BE CONSIDERED ON ASSESSMENT
58.06 (1) In assessing costs the assessment officer may consider,
(a) the amount involved in the proceeding;
(b) the complexity of the proceeding;
(c) the importance of the issues;
(d) the duration of the hearing;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted; and
(h) any other matter relevant to the assessment of costs.
(2) In assessing costs the assessment officer is bound by the court's direction or refusal to make a direction under rule 57.02, but is not bound where the court declines to make a direction and leaves the matter to the assessment officer's discretion.
COSTS OF ABANDONED MOTION, APPLICATION OR APPEAL
58.07 The costs of a motion, application or appeal that is abandoned or deemed to be abandoned may be assessed on filing in the office of the assessment officer,
(a) the notice of motion or application served, together with an affidavit that the notice was not filed within the prescribed time or that the moving party, applicant, plaintiff or appellant did not appear at the hearing; or
(b) the notice of abandonment served.
(c) a copy of the order dismissing the action or appeal as abandoned.
COSTS OF PARTICULAR PROCEEDINGS
Passing of Accounts
58.08 (1) The costs of passing the accounts of a trustee, attorney under a power of attorney, guardian or other person having similar duties relating to the management of assets shall be determined in accordance with subrules 74.18(10) to (13) (costs of passing of accounts of estate trustees).
Costs out of Fund or Estate
(2) Where costs are to be paid out of a fund or estate, the assessment officer may direct what parties are to attend on the assessment and may disallow the costs of the assessment of any party whose attendance is unnecessary because the interest of the party in the fund or estate is small, remote or sufficiently protected by other interested parties.
CERTIFICATE OF ASSESSMENT
58.09 On the assessment of party and party costs, the assessment officer shall set out in a certificate of assessment of costs (Form 58C) the amount of costs assessed and allowed.
OBJECTIONS TO ASSESSMENT
58.10 (1) On request, the assessment officer shall withhold the certificate for seven days or such other time as he or she directs, in order to allow a party who is dissatisfied with the decision of the assessment officer to serve objections on every other interested party and file them with the assessment officer, specifying concisely the grounds for the objections.
(2) A party on whom objections have been served may, within seven days after service or such other time as the assessment officer directs, serve a reply to the objections on every other interested party and file it with the assessment officer.
(3) The assessment officer shall then reconsider and review the assessment in view of the objections and reply and may receive further evidence in respect of the objections, and the assessment officer shall decide on the objections and complete the certificate accordingly.
(4) The assessment officer may, and if requested shall, state in writing the reasons for his or her decision on the objections.
APPEAL FROM ASSESSMENT
58.11 The time for and the procedure on an appeal under clause 6(l)(c) or 17(b) or subsection 90(4) of the Courts of Justice Act from a certificate of an assessment officer on an issue in respect of which an objection was served is governed by rule 62.01.
COSTS OF A SHERIFF
Party may Require Assessment
58.12 (1) A sheriff claiming fees or expenses that are not prescribed by the regulations under the Administration of Justice Act or that have not been assessed shall, on being required by a party, furnish the party with a bill of costs and
(2) A sheriff who has been required to have his or her fees or expenses assessed shall not collect them until they have been assessed.
(3) Either the sheriff or the party requiring the assessment may obtain an appointment for the assessment and the procedure on the assessment shall be the same as in the case of an assessment between party and party.
Reduction of Fees on Motion by Debtor
(4) A person liable under a writ of execution who is dissatisfied with the amount of fees or expenses claimed by a sheriff in respect of the enforcement of the writ may make a motion, before or after payment, on notice to the sheriff and, if the amount appears to be unreasonable, even though it is in accordance with Tariff A, the court may reduce the amount or order the amount to be refunded on such terms as are just.
(5) Nothing in subrule (4) authorizes the court to reduce or order a refund of a fee that is prescribed by the regulations under the Administration of Justice Act.