Section 131 of the Courts of Justice Act, RSO 1990, c C.43, grants the court wide discretion to make an award of costs of a proceeding (or for any particular step in the proceeding). Sub-rule 57.01 of the Rules of Civil Procedure, RRO 1990, Reg 194, sets out the factors a court will consider when exercising its discretion to award costs. The Court of Appeal for Ontario provided further guidance to the lower courts on awarding costs in Boucher v Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA).

While parties can make oral submissions in support of their claim for costs, costs are usually dealt with in writing. In Singh v RBC Insurance Agency Ltd., 2024 ONSC 2653 (ON SCJ), a dispute arose between the parties over what materials should be given to the judge: were the successful parties required to provide their dockets to the judge in support of their claim for costs?

At the conclusion of two successful motions, the parties were unable to agree on costs. At the motion judge’s direction, the successful plaintiffs delivered written costs submissions, supported by a Costs Outline. In response, the defendants asked the plaintiffs to produce their lawyer’s dockets in support of the Costs Outline. When the plaintiffs refused, the parties attended a case conference before the motion judge to determine the production request before the judge made his final decision on regarding costs of the motions.

The motion judge began by reviewing the applicable law on costs. The court held that sub-rule 57.01(5) directs parties to deliver a Bill of Costs (Form 57A) at the conclusion of a proceeding (whether a trial or application). A Bill of Costs provides that a party attach “dockets or other evidence” in support of their claim for the costs of the trial or application.

In contrast, sub-rule 57.01(6) directs parties to deliver a Costs Outline (Form 57B) at the conclusion of an interlocutory step in a proceeding (such as a motion). A Cost Outline is limited to three pages and sets out the hours spent, the persons who worked on the file, the hours claimed for each person, the partial indemnity rate sought, and the actual rate. A Cost Outline is not supported by “dockets or other evidence.”

The motion judge held that requirement to produce a Cost Outline at the conclusion of a motion, which is not accompanied by dockets, “… is consistent with the protection of solicitor and client privilege. A motion is an interim step in an action. Requiring production of dockets risks disclosure of solicitor and client privilege, even if redacted dockets are ordered by the court.” Thus the motion judge concluded that a court would only require dockets to be produced in support of a Cost Outline in exceptional cases.

The motion judge then reviewed each of the defendants’ arguments for requesting the plaintiffs’ counsel’s dockets, before finding that no exceptional circumstances existed in this case.

1.  The plaintiffs’ costs were substantial. The plaintiffs sought $623,341 in costs on a partial indemnity scale, inclusive of HST and disbursements. However, the motion judge held that the mere fact that the costs sought were significant did not support an order requiring production of plaintiffs’ counsel’s dockets.

2.  There was a significant disparity between the costs of the plaintiffs and defendants. The defendants’ partial indemnity costs of the motion was $254,251 – approximately $370,000 less than the plaintiffs’ costs. However, once again, the motion judge held that the disparity between the parties’ costs was not sufficient reason to order the production of counsel’s dockets. Rather, the court would take the disparity between the parties’ costs into consideration in the normal course of determining costs. The motion judge held: “If the defendants have incurred considerably less time and fees in preparing for all aspects of the motions, those discrepancies will be considered when the court applies the Boucher principles to determine what an unsuccessful party would reasonably expect to pay.”

3.  There were alleged “incongruities” in the plaintiffs’ Costs Outline. The defendants alleged that the plaintiffs’ costs far exceeded what would be expected for this step in a proceeding, which warranted a higher degree of scrutiny. The motion judge disagreed, finding: “… the production of heavily-redacted dockets would not necessarily explain any incongruity. If the costs claimed by the plaintiffs are excessive, the court will address such issues under the Boucher analysis both by considering the time spent and comparing such time to the defendants’ time incurred and historical costs awards.”

In conclusion, the motion judge dismissed the defendants’ request for production of the plaintiffs’ lawyer’s dockets. The parties’ costs of the case conference which was held to determine the production request were then added to the parties existing claim for costs of the motions.