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Federal Court - Costs. Red Pheasant First Nation v. Whitford
In Red Pheasant First Nation v. Whitford (Fed CA, 2023) the Federal Court of Appeal considered the discretion allowed in trial cost awards, and on appeal of same:[11] An award of costs is “quintessentially discretionary”: Nolan v. Kerry (Canada) Inc., 2009 SCC 39 at para. 126. Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, confirms that the standard of review applicable on appeals of discretionary decisions of the Federal Court is that articulated by the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33. Questions of law are reviewed on the standard of correctness. Findings of fact or mixed fact and law are reviewed for palpable and overriding error unless an extricable legal error can be demonstrated.
[12] Put another way, appellate Courts should interfere with costs awards only if the Court below “made an error in principle or if the costs award is plainly wrong”: Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6 at para. 247, citing Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 at para. 27.
III. Costs in the Federal Courts: Federal Courts Rules
[13] Rule 400(1) of the Federal Courts Rules, S.O.R./98-106 (Rules) expressly grants the Court “full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.” Rule 400(3) sets out a non-exhaustive list of factors the Court may consider in making cost awards. Rule 400(3)(o) expressly permits the Court to consider any other matter it considers relevant. The Court is not required to state the weight afforded to any particular factor and not all factors may be relevant in a particular case.
[14] Rule 400(4) allows the Court to fix costs according to the Tariff or to award a lump sum. Rule 400(6) allows the Court to award all or part of the costs on a solicitor-and-client basis. . Key First Nation v. Lavallee
In Key First Nation v. Lavallee (Fed CA, 2023) the Federal Court of Appeal's assessment officer issued an extensive cost ruling. I haven't seen one of these before and it may be interesting for anyone involved in such a costs proceeding.
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