Background
Jennifer Shannon Schwitzer appealed in litigation arising from a failed business venture. After missing deadlines for filing transcripts, she obtained an extension and, through counsel, committed to reducing her appeal from 11 grounds to three. The parties then agreed on a narrower transcript, and a chambers judge granted the extension, dismissed the respondents’ application to dismiss the appeal, and varied an existing stay.
Schwitzer later dismissed her counsel and attempted to revive all 11 grounds. The chambers judge held that allowing her to retain the benefit of the earlier order and transcript agreement while abandoning her commitment would be an abuse of process. He awarded the respondents special costs for preparing for and attending a June 4 case-management conference and a June 19 hearing. The registrar assessed those costs at $6,068, comprising $6,000 in fees and $68 in disbursements. Schwitzer applied to a single judge of the Court of Appeal to vary that assessment.
The Court’s Holding
Justice Mayer dismissed the application. The registrar had not awarded costs for the April 27 and May 7 proceedings, which were outside the special-costs order. Rather than accepting the respondents’ hour-by-hour claim, the registrar found their claimed time broadly unreasonable and fixed a lump sum by applying the factors in Rule 71(3) of the Court of Appeal Rules, together with his experience and judgment.
The registrar was also entitled to conclude that the respondents’ supporting affidavit, although barely sufficiently detailed, allowed Schwitzer to respond. Rule 71(4) permitted a lump-sum assessment without an itemized bill, and the registrar’s reasoning was intelligible. Finally, the registrar could allow the $47 filing fee for an affidavit used in the costs-assessment process as a necessary or properly incurred disbursement under Rule 72(1), even though no additional legal fees were claimed for the assessment itself.
Key Takeaways
- A registrar’s fact-specific costs assessment receives deference and may be varied only for an error in principle or if it is clearly wrong.
- Special costs may be assessed as a lump sum under the Court of Appeal Rules; an itemized, hour-by-hour calculation is not mandatory.
- Necessary or properly incurred disbursements connected with assessing costs may be recoverable even when no separate fees are claimed for the assessment.
Why It Matters
The decision confirms the broad discretion afforded to registrars when fixing special costs in British Columbia appellate proceedings. A reviewing judge will not reconstruct the assessment merely because the supporting material was sparse or the registrar did not connect the final amount to each claimed task.
It also distinguishes fees for conducting a costs assessment from disbursements necessarily or properly incurred in that process, clarifying that the latter may remain recoverable when the former are not claimed.