AWARDING COSTS

Ontario

The distinction between awarding costs, fixing costs and assessing costs is important. Awarding costs means determining who gets costs, on what scale, the timing of the obligation to pay costs and whether or not payment of the costs is contingent on the overall outcome of the litigation. An award of costs is an exercise of the discretion set out in s. 131 of the Courts of Justice Act, [R.S.O. 1990, c. C.43]. As an example, costs of a motion could be awarded to the plaintiff on a partial indemnity scale in the cause or in any event of the cause. That kind of award - which does not quantify the costs award - was common before the significant changes to the costs regime that resulted in the current Rule 57 [of the Rules of Civil Procedure].

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Fixing costs is not the same as assessing them. Fixing costs is supposed to be a more rough and ready approach than assessing them. In fixing costs, the court does not undertake an item by item assessment but rather it seeks to arrive at a global figure fair to all parties. The major benefit of fixing costs is one of expediency. Providing it can be done fairly, the ends of justice are best served by determining the quantum at the same time that costs are awarded.