CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
in accordance with its reasons. In making any order that the lower court ought to have made, the appellate court may impose any terms and conditions. 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 signifi- cantly 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 con- tract 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 typi- cally 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 other court manuals regarding disbursements and fees. 11.2 Factors Considered When Awarding Costs The courts may take a wide variety of circum- stances into account when determining a cost
award such as the complexity of the proceed- ings; any circumstances that shortened or lengthened the proceeding; each party’s con- duct during the litigation process; any formal 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 alter - native 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 resolu- tion (ADR) vary across the provinces and levels of court. In several provincial superior courts, mediation is required for some commercial mat- ters, although exemptions are available. In oth- ers, a judicial dispute resolution process may be available for commercial matters, but par- ticipation is not mandatory. Some courts offer a judge-led mediation with the goal of facilitating a settlement agreement amongst the parties or narrowing the issues for trial or appeal. There are no sanctions for refusing ADR where it is not mandatory.
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