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Civil Litigation - Costs - By Precedent. Canada v. Bowker
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In these quotes the court identifies a principled cost award as one that is premised on case precedent:[27] The Tax Court recognized that costs must be awarded on a principled basis (Decision at paras. 22, 29, 34) which implies that the award must not be arbitrary: Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6 at para. 45, Mohammad v. Canada (C.A.), 1997 CanLII 6356 (F.C.A.), [1998] 1 F.C. 165 at para. 30, Monsanto Canada Inc. v. Janssens, 2009 FC 318, 343 F.T.R. 234 at para. 52.
[28] The Tax Court’s selection of the 50% to 75% range was made in the name of consistency. Unfortunately, the sources cited showed no consistency. Assuming that the Court had in mind that its award should be consistent with other decisions of the Tax Court, it is notable that it did not cite other costs decisions of the Tax Court to demonstrate that the amount which it awarded was consistent with what had been done in other cases.
[29] The Tax Court was right to advance consistency as a basis upon which to base an award of costs but it erred in principle in not addressing the Court’s own jurisprudence in setting a range of possible awards. The Court’s own jurisprudence is important because a lack of consistency in the treatment of comparable cases leads to arbitrary results: see Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317 at para. 138, Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 at para. 18.
[31] This is not to say that a judge awarding costs on a lump sum basis must conduct a statistically sound review of prior costs awards to arrive at an appropriate amount. It simply means that a decision as to an appropriate award of costs must be grounded in the Court’s past practice and jurisprudence. A good example of this approach can be found in Damis. In the case at bar, an analysis of, or reference to, cases with comparable facts would have provided useful guidance on an appropriate level of costs.
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