PRACTICE |
Costs |
Kalke v. Canada
T-822-01
2003 FCT 61, Rouleau J.
22/1/03
9 pp.
By order, Hargrave P. awarded costs to plaintiff arising out of mediation proceedings in present action--Costs fixed at $5000--Defendants filed appeal challenging award of costs on basis award excessive or premature and because defendants not given opportunity to argue awarding of costs--In Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2nd) 2 (C.A.), Court stated costs in our system serve purpose of indemnifying successful litigant to greater or lesser degree and of deterring frivolous actions or defences--Review of exhibits and prothonotary's order revealed defendants' brief contained no compromise position and defendants did not indicate any instructions to deviate from position--Court may only review discretionary decision of prothonotary if decision clearly wrong, if exercise of discretion based upon wrong principle or erroneous finding of fact and if decision raises questions vital to final issue of case--Court found prothonotary's ruling does not affect final issue of case--Court not convinced decision based on erroneous principle or misinterpretation of facts--No evidence adduced by defendants convincing Court defendants had no other intention but to deny validity of plaintiff's claim or that had any instructions whatsoever to be prepared to compromise Minister's position--Award not excessive-- Costs purely discretionary matter always left to determination of trier--Prothonotary did not affront any legally binding principles--Appeal dismissed.