Federal Courts Rules

Marginal note:Discretionary powers of Court

• 400 (1) The Court shall have full discretionary power over the amount and allocation of costs and the determination of by whom they are to be paid.

• Marginal note:Crown

  (2) Costs may be awarded to or against the Crown.

• Marginal note:Factors in awarding costs

  (3) In exercising its discretion under subsection (1), the Court may consider

  • (a) the result of the proceeding;

  • (b) the amounts claimed and the amounts recovered;

  • (c) the importance and complexity of the issues;

  • (d) the apportionment of liability;

  • (e) any written offer to settle;

  • (f) any offer to contribute made under rule 421;

  • (g) the amount of work;

  • (h) whether the public interest in having the proceeding litigated justifies a particular award of costs;

  • (i) any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceeding;

  • (j) the failure by a party to admit anything that should have been admitted or to serve a request to admit;

  • (k) whether any step in the proceeding was

    • (i) improper, vexatious or unnecessary, or

    • (ii) taken through negligence, mistake or excessive caution;

  • (l) whether more than one set of costs should be allowed, where two or more parties were represented by different solicitors or were represented by the same solicitor but separated their defence unnecessarily;

  • (m) whether two or more parties, represented by the same solicitor, initiated separate proceedings unnecessarily;

  • (n) whether a party who was successful in an action exaggerated a claim, including a counterclaim or third party claim, to avoid the operation of rules 292 to 299;

  • (n.1) whether the expense required to have an expert witness give evidence was justified given

    • (i) the nature of the litigation, its public significance and any need to clarify the law,

    • (ii) the number, complexity or technical nature of the issues in dispute, or

    • (iii) the amount in dispute in the proceeding; and

  • (o) any other matter that it considers relevant.

• Marginal note:Tariff B

  (4) The Court may fix all or part of any costs by reference to Tariff B and may award a lump sum in lieu of, or in addition to, any assessed costs.

• Marginal note:Directions re assessment

  (5) Where the Court orders that costs be assessed in accordance with Tariff B, the Court may direct that the assessment be performed under a specific column or combination of columns of the table to that Tariff.

• Marginal note:Further discretion of Court

  (6) Notwithstanding any other provision of these Rules, the Court may

  • (a) award or refuse costs in respect of a particular issue or step in a proceeding;

  • (b) award assessed costs or a percentage of assessed costs up to and including a specified step in a proceeding;

  • (c) award all or part of costs on a solicitor-and-client basis; or

  • (d) award costs against a successful party.

• Marginal note:Award and payment of costs

  (7) Costs shall be awarded to the party who is entitled to receive the costs and not to the party’s solicitor, but they may be paid to the party’s solicitor in trust.