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Ontario and Canada
Appeal Court Dicta

Civil Litigation - Costs - Agreement by Parties

. SIR Corp. v. Aviva Insurance Company of Canada

In SIR Corp. v. Aviva Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers it's discretion to disregard a costs agreement reached between the parties:

[117] Before the application was heard, SIR and Aviva agreed that costs of the application would be $100,000, all inclusive. While SIR had incurred costs well in excess of $100,000, it was willing, at the time it entered into the costs agreement, to forgo the potential to recover its full costs in exchange for the certainty that, at most, it would be responsible to pay Aviva $100,000, if the court found that Aviva was entitled to costs.

[118] The application judge rejected SIR’s argument that the costs agreement should not be enforced and that there should be no costs because Aviva drove up costs by taking unnecessary steps in the application and had changed its position in the course of the hearing. She held that Aviva was successful on the application and that there was no conduct on the part of Aviva worthy of depriving it of its costs. She accordingly awarded Aviva costs in the all-inclusive amount of $100,000, as stipulated in the costs agreement, as well as full indemnity costs for the preparation of Aviva’s costs submissions in the all‑inclusive amount of $8,136. SIR seeks leave to appeal that decision.

[119] A judge’s discretion in determining the entitlement, scale, and quantum of a costs order is entitled to considerable deference. Leave to appeal a costs decision is granted sparingly. I am not persuaded that there are strong grounds on which this court could find that the application judge erred in exercising her discretion to award costs in accordance with the costs agreement. Leave to appeal the costs award is not warranted.
. Acquaviva v. Holmes

In Acquaviva v. Holmes (Ont CA, 2022) the Court of Appeal cites law that a costs agreement between the parties is not binding on the court:
[11] The respondents seek costs on a full indemnity scale in the amount of $17,444.38 based on the terms of the charge. Although the agreement of the parties does not operate to exclude the court’s discretion (see Bossé v Mastercraft Group Inc., 1995 CanLII 931 (ON CA), 123 D.L.R. (4th) 161 (Ont. C.A.), at paras. 62-69), we are satisfied that the costs requested are justified and fair and reasonable in the circumstances of this case. Accordingly, the appellant is to pay the respondents their costs on a full indemnity scale fixed in the amount of $17,444.38 inclusive of disbursements and applicable tax.


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