General Cost Assessment Principles 2022

General Cost Assessment Principles 2022

Sherwood v The Owners of Strata Lot 1549 2022 BCSC 1349 provides an excellent and thorough review of hos cost assessment and disbursements .

Rule 14-1 deals with cost assessment.

Sub-section (1) addresses cost assessment generally:

If costs are payable to a party under these Supreme Court Civil Rules or by order, those costs must be assessed as party and party costs in accordance with Appendix B …

Sub-section (2) sets out the test for fees under Appendix “B”:

Cost Assessment of party and party costs

(2) On an assessment of party and party costs under Appendix B, a registrar must

(a) allow those fees under Appendix B that were proper or reasonably necessary to conduct the proceeding, and
(b) consider Rule 1-3 and any case plan order.

Sub-section (5) addresses the test for disbursements:


(5) Cost assessment under subrule (2) or (3) of this rule, a registrar must

(a) determine which disbursements have been necessarily or properly incurred in the conduct of the proceeding, and
(b) allow a reasonable amount for those disbursements.

Rule 1-3 is as follows:


(1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.

There is a summary of applicable principles for cost assessment in CLE-BC’s loose-leaf publication, Practice Before the Registrar, General Principles of Cost Assessment, at para. 2.25.

Some relevant points for purposes of this assessment include:

a) Whether fees claimed or disbursements claimed should be allowed is determined objectively.
b) A step is “necessary” if it was indispensable to the conduct of the proceeding. It is “proper” if it was not necessary but was nonetheless reasonably taken or incurred for the purpose of the proceeding.
c) If fees or disbursements were incurred or increased through extravagance, negligence, mistake or by reason of payment of unjustified charges or expenses, they should be disallowed.
d) The registrar has a duty to consider counsel’s obligation to prepare a client’s case thoroughly and with care, and not to second-guess counsel’s views of what steps or expenses were required.
e) Whether a disbursement was necessarily and properly incurred must be assessed based on the circumstances existing at that time.
f) One way that reasonableness can be assessed is in relation to the amount at stake in the proceeding in which costs are claimed.

In Carreiro v. Smith, 2015 BCSC 2379 at paras. 13-15, Registrar Nielsen summarized the general principles as follows:

Whether work for which fees are claimed should be allowed must be determined objectively. A step was necessary if it was indispensable to the conduct of the proceeding. A step was proper if it was not necessary, but was nevertheless reasonably taken or incurred for the purpose of the proceeding. In fixing the number of units for items where a minimum and a maximum number of units is allowed, the Registrar is to allow the minimum amount of units for matters upon which little time should ordinarily have been spent; and the maximum amount of units for matters upon which a great deal of time should ordinarily have been spent.

The assessment of discretionary tariff items is an objective exercise. In determining the proper number of units to award in respect of each item, the Registrar is to compare the case that is before him or her with all other cases that come before the court, and decide where it fits within the spectrum. Certain objective factors are to be considered, such as whether the litigation was simple or straightforward, if the litigation involved numerous parties, extensive legal issues, numerous experts, large sums of money, or any other factors which may have impacted upon the case’s difficulty.

Registrars are to have regard to the particular circumstances of the proceeding in which costs are claimed when deciding how many units within the prescribed range should be allowed.

In Wheeldon v. Magee, 2010 BCSC 491 at para. 21, Master Bouck commented regarding assessment of tariff items:

With respect to the tariff items, where the minimum number of units are provided for an item, the assessing officer must consider this question: “How much time, on a scale of 1 to X (where X is the maximum units the tariff provides) should a reasonably competent lawyer have spent on the work for which the costs are claimed?”: See Practice Before the Registrar (CLE) at p. 2-22.

[ In Dhillon v. Bowering, 2013 BCSC 1178 at paras. 15-16, Registrar Sainty summarized the process of assessing disbursements:

The test for determining the recoverability of a disbursement is set out in Van Daele v. Van Daele (1983), 56 B.C.L.R. 178 (C.A.), where Mr. Justice Macfarlane said at paragraph 11:

The proper test, it seems to me, from a number of authorities referred to us this morning is whether at the time the disbursement or expense was incurred, it was a proper disbursement in the sense of not being extravagant, negligent, mistaken, or a result of excessive caution or excessive zeal, judged by the situation at the time when the disbursement or expense was incurred.
16 In deciding these issues, a registrar has a wide discretion. That discretion was explained in Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.), at paragraphs 23 and 24, in the following manner:

I consider that Rule 57(4) entitles the registrar to exercise a wide discretion to disallow disbursements in whole or in part where the disbursements appear to him to have been incurred or increased through extravagance, negligence, or mistake, or by payment of unjustified charges or expenses. The registrar must consider all of the circumstances of each case and determine whether the disbursements were reasonably incurred and were justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client.

The registrar is not bound to accept an affidavit of counsel that in counsel’s opinion the employment of the expert or the incurring of the expense was justified or that it was necessary for the attainment of justice when the registrar is considering allowing or disallowing the disbursement under this rule. He should give careful consideration to any such affidavit and he must weigh what is deposed to against any affidavit that deposes to the opposite effect. His duty under the rule is to determine whether the expense is a reasonable and justifiable expense which should be borne by the unsuccessful litigant.

And at para. 23 of her reasons, Registrar Sainty said the following regarding proportionality:

23 I must also consider “proportionality” in making my decision. But proportionality is, in my view, a two-way street. The amount of money at issue in an action (large or small) may have a bearing on both the necessity and propriety of a disbursement and whether it is reasonable in the circumstances. … In my view (and I agree with Ms. Dewar’s submissions on this point), proportionality (which I must consider in assessing costs per Rule 14-1(2)(b)) refers to the significance of the claim; either small or large.

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