Federal Courts Rules (SOR/98-106)

Marginal note:Costs of motion

• 401 (1) The Court may award costs of a motion in an amount fixed by the Court.

• Marginal note:Costs payable forthwith

  (2) Where the Court is satisfied that a motion should not have been brought or opposed, the Court shall order that the costs of the motion be payable forthwith.

Marginal note:Costs of discontinuance or abandonment

402 Unless otherwise ordered by the Court or agreed by the parties, a party against whom an action, application or appeal has been discontinued or against whom a motion has been abandoned is entitled to costs forthwith, which may be assessed and the payment of which may be enforced as if judgment for the amount of the costs had been given in favour of that party.

Marginal note:Motion for directions

• 403 (1) A party may request that directions be given to the assessment officer respecting any matter referred to in rule 400,

  • (a) by serving and filing a notice of motion within 30 days after judgment has been pronounced; or

  • (b) in a motion for judgment under subsection 394(2).

• Marginal note:Motion after judgment

  (2) A motion may be brought under paragraph (1)(a) whether or not the judgment included an order concerning costs.

• Marginal note:Same judge or prothonotary

  (3) A motion under paragraph (1)(a) shall be brought before the judge or prothonotary who signed the judgment.

Marginal note:Liability of solicitor for costs

• 404 (1) Where costs in a proceeding are incurred improperly or without reasonable cause or are wasted by undue delay or other misconduct or default, the Court may make an order against any solicitor whom it considers to be responsible, whether personally or through a servant or agent,

  • (a) directing the solicitor personally pay the costs of a party to the proceeding; or

  • (b) disallowing the costs between the solicitor and the solicitor’s client.

• Marginal note:Show cause by solicitor

  (2) No order under subsection (1) shall be made against a solicitor unless the solicitor has been given an opportunity to be heard.

• Marginal note:Notice to client

  (3) The Court may order that notice of an order against a solicitor made under subsection (1) be given to the solicitor’s client in a manner specified by the Court.

Assessment of Costs

Marginal note:Assessment by assessment officer

405 Costs shall be assessed by an assessment officer.

Marginal note:Obtaining appointment

• 406 (1) A party who is entitled to costs may obtain a notice of appointment for assessment by filing a bill of costs, a copy of the order or other document giving rise to the party’s entitlement to costs and any reasons, including dissenting reasons, given in respect of that order.

• Marginal note:Notice of appointment

  (2) A notice of appointment for assessment and the bill of costs to be assessed shall be served on every other interested party at least 10 days before the date fixed for the assessment.

Marginal note:Assessment according to Tariff B

407 Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.

Marginal note:Directions

• 408 (1) An assessment officer may direct the production of books and documents and give directions for the conduct of an assessment.

• Marginal note:Set-off of costs

  (2) Where parties are liable to pay costs to each other, an assessment officer may adjust those costs by way of set-off.

• Marginal note:Costs of assessment

  (3) An assessment officer may assess and allow, or refuse to allow, the costs of an assessment to either party.

Marginal note:Factors in assessing costs

409 In assessing costs, an assessment officer may consider the factors referred to in subsection 400(3).

Marginal note:Costs of amendment

• 410 (1) Unless the Court orders otherwise, the costs occasioned by an amendment to a pleading made without leave shall be borne by the party making the amendment.

• Marginal note:Costs of motion to extend time

  (2) Unless the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion.

Marginal note:Costs of abandoned motion

411 The costs of a motion that is abandoned or deemed to be abandoned may be assessed on the filing of

• (a) the notice of motion, together with an affidavit stating that the notice was not filed within the prescribed time or that the moving party did not appear at the hearing of the motion; or

• (b) where a notice of abandonment was served, the notice of abandonment.

Marginal note:Costs of discontinued proceeding

412 The costs of a proceeding that is discontinued may be assessed on the filing of the notice of discontinuance.

Marginal note:Accounts of solicitor for Crown

• 413 (1) Where requested by the Attorney General of Canada, a prothonotary shall assess any costs payable by the Crown to a solicitor acting for the Crown in a proceeding.

• Marginal note:Existing rights

  (2) Subsection (1) shall not be construed so as to prejudice any rights between a solicitor and a client in respect of the recovery of the solicitor’s costs in any competent court.

Marginal note:Review of assessment

414 A party who is dissatisfied with an assessment of an assessment officer who is not a judge may, within 10 days after the assessment, serve and file a notice of motion to request that a judge of the Federal Court review the award of costs.

Security for Costs

Marginal note:Application

415 Rules 416 to 418 apply, with such modifications as are necessary, to parties bringing and defending counterclaims and third party claims, to applicants and respondents in an application and to appellants and respondents in an appeal.

Marginal note:Where security available

• 416 (1) Where, on the motion of a defendant, it appears to the Court that

  • (a) the plaintiff is ordinarily resident outside Canada,

  • (b) the plaintiff is a corporation, an unincorporated association or a nominal plaintiff and there is reason to believe that the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant if ordered to do so,

  • (c) the plaintiff has not provided an address in the statement of claim, or has provided an incorrect address therein, and has not satisfied the Court that the omission or misstatement was made innocently and without intention to deceive,

  • (d) the plaintiff has changed address during the course of the proceeding with a view to evading the consequences of the litigation,

  • (e) the plaintiff has another proceeding for the same relief pending elsewhere,

  • (f) the defendant has an order against the plaintiff for costs in the same or another proceeding that remain unpaid in whole or in part,

  • (g) there is reason to believe that the action is frivolous and vexatious and the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant, if ordered to do so, or

  • (h) an Act of Parliament entitles the defendant to security for costs,

  the Court may order the plaintiff to give security for the defendant’s costs.

• Marginal note:Staging

  (2) The Court may order that security for the costs of a defendant be given in stages, as costs are incurred.

• Marginal note:Further steps

  (3) Unless the Court orders otherwise, until the security required by an order under subsection (1) or (2) has been given, the plaintiff may not take any further step in the action, other than an appeal from that order.

• Marginal note:Party temporarily resident in Canada

  (4) A party ordinarily resident outside Canada may be ordered to give security for costs, notwithstanding that the party may be temporarily resident in Canada.

• Marginal note:Voluntary payment into court

  (5) In the absence of an order under subsection (1), a plaintiff may, at any time after filing a statement of claim, pay an amount into court as security for the defendant’s costs and give notice of the payment to the defendant.

• Marginal note:Increase in security

  (6) The Court may, on the motion of a defendant, order a plaintiff who has paid an amount into court under subsection (5) to pay in an additional amount as security for the defendant’s costs.