In Evans v. Jensen, the British Columbia Court of Appeal held that, where a costs rule provides specified alternatives for an award of costs, it is not open to the court to make an award other than as expressly set out in the rule.
Prior to the trial, the defendant made an offer to settle. The plaintiff rejected the offer and went to trial; however, the settlement offer turned out to be significantly higher than the damages awarded in trial. In awarding costs to the defendant, the parties both accepted that single costs were appropriate; the trial judge, however, awarded double costs pursuant to Rule of Court 37B(5), reasoning that this rule, which presents specific alternatives as to an award of costs, removed his discretion in regards to costs.
In affirming the decision of the trial judge, Prowse J.A. noted that the absence of broad discretionary language, such as that found in other Rules of Court, indicated that the options listed in Rule 37B(5) was an exclusive list. She also noted that a binary choice between double and zero costs was consistent with the policy of encouraging settlements.
June 16, 2011
Link to Decision
Sam Golder & Dominik Swierad
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