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Federal Court - Costs. Seismotech IP Holdings Inc. v. Ecobee Technologies ULC
In Seismotech IP Holdings Inc. v. Ecobee Technologies ULC (Fed CA, 2024) the Federal Court of Appeal made a useful note re cost awards:[11] While we find that the present appeal cannot succeed on the merits, the Motion Judge’s order must nevertheless be varied. Indeed, it is trite law that as a matter of procedural fairness, costs cannot be awarded when they have not been requested, which, admittedly, is the case here (Exeter v Canada (Attorney General), 2013 FCA 134 at para. 12; Haynes v. Canada (Attorney General), 2023 FCA 244 at para. 5). As a result, the appeal will be granted but only in relation to the costs award. Otherwise, it is dismissed. Since, this time, the respondent is seeking costs, they will be awarded to it. . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal noted a case that maintained that a costs order must be requested:... As is well settled, there cannot be an award of costs for a particular proceeding if costs were not requested in that proceeding (Exeter v. Canada (Attorney General), 2013 FCA 134, 445 N.R. 356 at para. 16). . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered costs awarded to presenting (self-represented) parties:[14] Here, I see no reason to interfere with the Federal Court’s finding in this regard. It was open to it to expect that the appellant would have provided some evidence or information regarding the costs he had incurred so far in the application for judicial review. This approach is consistent with this Court’s jurisprudence according to which unrepresented litigants, while not barred from receiving costs, have no automatic right to the full amount contemplated by the Tariff. Rather, self-represented parties are entitled, in addition to actual outlays and disbursements, to “some form of compensation […], particularly when [they are] required to be present at a hearing and [forego] income because of that” (Air Canada c. Thibodeau¸ 2007 FCA 115, 375 N.R. 195 at para. 24, citing Sherman v. Minister of National Revenue, 2003 FCA 202, [2003] 4 F.C. 865). . Haynes v. Canada (Attorney General)
In Haynes v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered R400 regarding costs in the federal courts:[13] Rule 400(1) establishes the basic principle that costs are in the complete discretion of the Court as to issues of entitlement, amount and allocation (Canada (Attorney General) v. Rapiscan Systems Inc, 2015 FCA 97 at para. 10). They are, in that sense, “quintessentially discretionary” (Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678 at para. 126). Awards of costs, therefore, command deference so that an appellate court will only intervene if they are vitiated by palpable and overriding error (Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215)). . Hull v. Canada [deference and offers]
In Hull v. Canada (Fed CA, 2023) the Federal Court of Appeal characterizes the deference accorded to cost orders on appeal, and considers the cost order effect of prior offers to settle the litigation:[3] As noted by this Court in Marzen Artistic Aluminum Ltd. v. Canada, 2016 FCA 34:[59] On the third issue regarding the granting of costs to the respondent, it is a well-established principle that orders granting costs are discretionary and command deference. Rule 147 of the Tax Court of Canada Rules (General Procedure) SOR/90-688a, specifies the factors that a judge must consider in awarding costs. An appellate Court should only intervene if the Judge considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion (see Guibord v. Canada, 2011 FCA 346). [4] This discretion in granting cost awards is maintained in Rule 147(3.1). Rule 147(3.1) provides for enhanced costs when an appellant makes an offer of settlement and obtains a judgment at least as favourable as the settlement offer. The discretion to not apply this Rule is confirmed by the opening words of Rule 147(3.1) – "“[u]nless otherwise ordered by the Court…”".
[5] In this case, the Tax Court Judge decided to not apply Rule 147(3.1) as he was entitled to do. There is no merit to the appellant’s argument that, as a result of obtaining a more favourable judgment than the settlement offer, he was automatically entitled to "“enhanced costs”". This argument overlooks the opening words of Rule 147(3.1) which clearly grant the Tax Court Judge the discretion to grant an order for costs that does not reflect the enhanced costs as set out in this Rule. . 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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