Breaking down the costs outline
By Ian Hull
Determining when to prepare a bill of costs versus a costs outline can be a bit tricky. The two documents have similar content, similar names, and require similar calculations. A recently-presented paper by Ed Upenieks of Lawrence, Lawrence, Stevenson LLP and the Rules of Civil Procedure are very helpful in this regard.
Rule 57.01(5) provides that after a trial, a dispositive motion or the hearing of an application, a party who is awarded costs must serve and file a bill of costs.
A bill of costs should show a breakdown of what component of the costs is attributable to each stage of the proceeding, (e.g. pleadings, discoveries, trial preparation).
Within each, it should list what was done. It should also include a table of lawyers and clerks that spent time, the hours spent, the hourly rate, the product of the hours and the rates, and the total for each. A statement of disbursements should be included at the end.
A costs outline is required to be prepared whenever a party intends to seek costs for a step in a proceeding by the party that is seeking them, and the parties have not agreed on costs beforehand. This is provided for in the Rules of Civil Procedure at subrule 57.01(6).
The costs outline should include a similar calculation. The prescribed form includes a table with headings for the fee for each stage of the proceedings, the person who provided services, the hours spent by each person, the rate being sought for each person (adjusted to the partial, substantial or full indemnity standard) and the actual rate.
By way of contrast to a bill of costs, the costs outline should include brief submissions on each of the factors listed in subrule 57.01(1) of the Rules, which clarifies what points the court will consider when making an order for costs. These must be limited in length, since the Rules specify that a costs outline is not to exceed three pages in length.
A judge may also order costs submissions in specified form or within a set deadline. Submissions should be in a form similar to that of a factum. It should be divided by subheadings and clarify what work was done. It may be accompanied by a costs outline as well.
It is necessary to adhere strictly to the court’s directions. In Re Van Spengen Estate, (2006), 80 O.R. 3rd 317 (S.C.J.), costs were ordered against one lawyer who submitted a thorough tabbed brief on costs when the judge had ordered that submissions not exceed three pages in length.
Before preparing any materials with respect to costs, it is important to carefully consider the Rules, to review the history of the file, and – if ordered to give written or oral submissions – to follow judicial directions. Read Toronto Estate Law Blog