Kyle Estate v Kyle 2018 BCCA 61 discussed the issue of who should be awarded court costs of an appeal.
Section 23 of the Court of Appeal act RS BC 1996, provides:
23. Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal, including the costs of all applications made in the appeal.
In Marquez v Zapiola 2014 BCCA 35, the BCCA stated:
“Success in the event has been interpreted as substantial success see Fotheringham v Fotheringham 2001 BCSC 1321 , leave to appeal refused 2002 BCCA 454.
In that decision, the standard was described as follows:
“ The decision. Gold now seems to say that substantial success in an action should be decided by the trial judge looking at the various matters in dispute, and weighing their relative importance. The words “substantial success” are not defined. For want of a better measure, since success, a passing grade is around 50% or better, substantial successes about 75% or better. That does not mean a court must ascend into a meticulous mathematical examination of the matters in dispute and assigned a percentage to each matter. Rather, it is meant to serve as a rough and ready guide when looking at all the disputed matters globally:
In Mirza v Mirza 2007 BCCA 106, this court said:
Substantial success, determined by assessing the success on the major issues of substance, is sufficient for an order of costs Newham v Newham (1993) RFL (3d) , 49 BC CA.