CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
11. Costs 11.1 Responsibility for Paying the Costs of Litigation The rules of procedure or provincial statutes govern costs. Most common law jurisdictions in Canada take a modified “loser pays” approach to costs, although the specifics of how the amounts are calculated vary by province. In general, the winning party is entitled to costs. However, judges are afforded broad discretion in awarding costs, and the cost rules vary significantly across the common law provinces. Costs may be awarded on a full indemnity, partial indemnity or party and party basis. Full indemnity costs may be awarded where the contract between the parties that gave rise to the litigation provides for full indemnity costs to the party who must enforce the obligations. Costs on a party and party basis are default and typically awarded according to a schedule or tariff of costs for certain steps. If there are disputes that cannot be settled by the court, or the court declines to address costs, costs may be assessed by a court officer, who reviews invoices and detailed calculations and calculates the amounts according to the rules of procedure and oth- er court manuals regarding disbursements and fees. 11.2Factors Considered When Awarding Costs The courts may take various circumstances into account when determining a cost award, such as the complexity of the proceedings, any circumstances that shortened or lengthened the proceeding, each party’s conduct during the litigation process, any for- mal offers to settle that were not accepted and the reasonableness of the amounts claimed. 11.3 Interest Awarded on Costs Under the statutory regimes governing pre- and post- judgment interest, interest is not typically available on cost awards.
12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Arbitration is widely used in Canada as an alterna- tive to court litigation. Arbitration is commonly used in the mining, oil and gas, construction, information technology, forestry and power industries, as well as in shareholder disputes. Mediation is also widely available, although it may not be used as frequently for commercial matters. 12.2 ADR Within the Legal System The requirements for alternative dispute resolution (ADR) vary across provinces and levels of court. In sev- eral provincial superior courts, mediation is required for some commercial matters, although exemptions are available. In others, a judicial dispute resolution process may be available for commercial matters, but participation is not mandatory. Some courts offer a judge-led mediation, with the goal of facilitating a set- tlement agreement amongst the parties or narrowing the issues for trial or appeal. There are no sanctions for refusing ADR where it is not mandatory. 12.3 ADR Institutions There are many arbitration institutions and facilities in Canada that support both domestic and international arbitration proceedings. They include: • the ADR Institute of Canada Inc (ADRIC); • the Vancouver International Arbitration Centre (VanIAC, formerly BCICAC); • the Canadian International Internet Dispute Resolu- tion Centre (CIIDRC, a division of VanIAC); • the Canadian Arbitration Association (CAA); and • the International Centre for Dispute Resolution of Canada (ICDR – Canada). Former judges and senior litigation counsel also act as mediators or arbitrators, either individually or through consortiums.
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