Federal Courts Rules (SOR/98-106)

Assessment of Costs

Marginal note:Assessment by assessment officer

405 Costs shall be assessed by an assessment officer.

Marginal note:Obtaining appointment

• 406 (1) A party who is entitled to costs may obtain a notice of appointment for assessment by filing a bill of costs, a copy of the order or other document giving rise to the party’s entitlement to costs and any reasons, including dissenting reasons, given in respect of that order.

• Marginal note:Notice of appointment

  (2) A notice of appointment for assessment and the bill of costs to be assessed shall be served on every other interested party at least 10 days before the date fixed for the assessment.

Marginal note:Assessment according to Tariff B

407 Unless the Court orders otherwise, party-and-party costs shall be assessed in accordance with column III of the table to Tariff B.

Marginal note:Directions

• 408 (1) An assessment officer may direct the production of books and documents and give directions for the conduct of an assessment.

• Marginal note:Set-off of costs

  (2) Where parties are liable to pay costs to each other, an assessment officer may adjust those costs by way of set-off.

• Marginal note:Costs of assessment

  (3) An assessment officer may assess and allow, or refuse to allow, the costs of an assessment to either party.

Marginal note:Factors in assessing costs

409 In assessing costs, an assessment officer may consider the factors referred to in subsection 400(3).

Marginal note:Costs of amendment

• 410 (1) Unless the Court orders otherwise, the costs occasioned by an amendment to a pleading made without leave shall be borne by the party making the amendment.

• Marginal note:Costs of motion to extend time

  (2) Unless the Court orders otherwise, the costs of a motion for an extension of time shall be borne by the party bringing the motion.

Marginal note:Costs of abandoned motion

411 The costs of a motion that is abandoned or deemed to be abandoned may be assessed on the filing of

• (a) the notice of motion, together with an affidavit stating that the notice was not filed within the prescribed time or that the moving party did not appear at the hearing of the motion; or

• (b) where a notice of abandonment was served, the notice of abandonment.

Marginal note:Costs of discontinued proceeding

412 The costs of a proceeding that is discontinued may be assessed on the filing of the notice of discontinuance.

Marginal note:Accounts of solicitor for Crown

• 413 (1) Where requested by the Attorney General of Canada, a prothonotary shall assess any costs payable by the Crown to a solicitor acting for the Crown in a proceeding.

• Marginal note:Existing rights

  (2) Subsection (1) shall not be construed so as to prejudice any rights between a solicitor and a client in respect of the recovery of the solicitor’s costs in any competent court.

Marginal note:Review of assessment

414 A party who is dissatisfied with an assessment of an assessment officer who is not a judge may, within 10 days after the assessment, serve and file a notice of motion to request that a judge of the Federal Court review the award of costs.

Security for Costs

Marginal note:Application

415 Rules 416 to 418 apply, with such modifications as are necessary, to parties bringing and defending counterclaims and third party claims, to applicants and respondents in an application and to appellants and respondents in an appeal.

Marginal note:Where security available

• 416 (1) Where, on the motion of a defendant, it appears to the Court that

  • (a) the plaintiff is ordinarily resident outside Canada,

  • (b) the plaintiff is a corporation, an unincorporated association or a nominal plaintiff and there is reason to believe that the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant if ordered to do so,

  • (c) the plaintiff has not provided an address in the statement of claim, or has provided an incorrect address therein, and has not satisfied the Court that the omission or misstatement was made innocently and without intention to deceive,

  • (d) the plaintiff has changed address during the course of the proceeding with a view to evading the consequences of the litigation,

  • (e) the plaintiff has another proceeding for the same relief pending elsewhere,

  • (f) the defendant has an order against the plaintiff for costs in the same or another proceeding that remain unpaid in whole or in part,

  • (g) there is reason to believe that the action is frivolous and vexatious and the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant, if ordered to do so, or

  • (h) an Act of Parliament entitles the defendant to security for costs,

  the Court may order the plaintiff to give security for the defendant’s costs.

• Marginal note:Staging

  (2) The Court may order that security for the costs of a defendant be given in stages, as costs are incurred.

• Marginal note:Further steps

  (3) Unless the Court orders otherwise, until the security required by an order under subsection (1) or (2) has been given, the plaintiff may not take any further step in the action, other than an appeal from that order.

• Marginal note:Party temporarily resident in Canada

  (4) A party ordinarily resident outside Canada may be ordered to give security for costs, notwithstanding that the party may be temporarily resident in Canada.

• Marginal note:Voluntary payment into court

  (5) In the absence of an order under subsection (1), a plaintiff may, at any time after filing a statement of claim, pay an amount into court as security for the defendant’s costs and give notice of the payment to the defendant.

• Marginal note:Increase in security

  (6) The Court may, on the motion of a defendant, order a plaintiff who has paid an amount into court under subsection (5) to pay in an additional amount as security for the defendant’s costs.

Marginal note:Grounds for refusing security

417 The Court may refuse to order that security for costs be given under any of paragraphs 416(1)(a) to (g) if a plaintiff demonstrates impecuniosity and the Court is of the opinion that the case has merit.

Marginal note:How security to be given

418 Where a person is required under these Rules or an Act of Parliament to give security for costs or for any other purpose, unless otherwise ordered by the Court or required by that Act, the person may do so

• (a) by paying the required amount into court; or

• (b) by filing a bond for the required amount that has been approved by an order of the Court.

Offer to Settle

Marginal note:Application to other proceedings

419 Rules 420 and 421 apply, with such modifications as are necessary, to parties bringing and defending counterclaims and third party claims, to applicants and respondents in an application and to appellants and respondents in an appeal.

Marginal note:Consequences of failure to accept plaintiff’s offer

• 420 (1) Unless otherwise ordered by the Court and subject to subsection (3), where a plaintiff makes a written offer to settle and obtains a judgment as favourable or more favourable than the terms of the offer to settle, the plaintiff is entitled to party-and-party costs to the date of service of the offer and costs calculated at double that rate, but not double disbursements, after that date.

• Marginal note:Consequences of failure to accept defendant’s offer

  (2) Unless otherwise ordered by the Court and subject to subsection (3), where a defendant makes a written offer to settle,

  • (a) if the plaintiff obtains a judgment less favourable than the terms of the offer to settle, the plaintiff is entitled to party-and-party costs to the date of service of the offer and the defendant shall be entitled to costs calculated at double that rate, but not double disbursements, from that date to the date of judgment; or

  • (b) if the plaintiff fails to obtain judgment, the defendant is entitled to party-and-party costs to the date of the service of the offer and to costs calculated at double that rate, but not double disbursements, from that date to the date of judgment.

• Marginal note:Conditions

  (3) Subsections (1) and (2) do not apply unless the offer to settle

  • (a) is made at least 14 days before the commencement of the hearing or trial; and

  • (b) is not withdrawn and does not expire before the commencement of the hearing or trial.

Marginal note:Offers without costs

• 420.1 (1) In circumstances where a written offer to settle does not provide for the settlement of the issue of costs, if a party requests the Court to consider rule 420, the Court, in ascertaining whether the judgment granted is more or less favourable than the offer to settle, shall not have regard to costs awarded in the judgment or that would otherwise be awarded.

• Marginal note:Application to court

  (2) For greater certainty, if a written offer to settle that does not provide for the settlement of the issue of costs is accepted, a party to the offer may apply to the Court for an order determining costs.

Marginal note:Offer to contribute

421 Subsection 420(2) applies to a third party, or to one of two or more defendants who are alleged to be jointly and severally liable to the plaintiff in respect of a claim, who makes a written offer to other defendants or third parties to contribute toward a settlement of the claim.

Marginal note:Disclosure of offer to Court

422 No communication respecting an offer to settle or offer to contribute shall be made to the Court, other than to a case management judge or prothonotary assigned under rule 383(c) or to a judge or prothonotary at a pre-trial conference, until all questions of liability and the relief to be granted, other than costs, have been determined.

PART 12Enforcement of Orders

General

Marginal note:Definition of designated officer

422.1 In this Part, designated officer means an officer of the Registry designated by an order of the Court.

Marginal note:Where brought

423 All matters relating to the enforcement of orders shall be brought before the Federal Court.

Marginal note:Enforcement of order of tribunal

• 424 (1) Where under an Act of Parliament the Court is authorized to enforce an order of a tribunal and no other procedure is required by or under that Act, the order may be enforced under this Part.

• Marginal note:Filing of order

  (2) An order referred to in subsection (1) shall be filed together with a certificate from the tribunal, or an affidavit of a person authorized to file such an order, attesting to the authenticity of the order.

Marginal note:Enforcement of order for payment of money

425 An order for the payment of money may be enforced by

• (a) a writ of seizure and sale in Form 425A;

• (b) garnishment proceedings;

• (c) a charging order;

• (d) the appointment of a receiver; and

• (e) in respect of a person referred to in rule 429, a writ of sequestration in Form 425B.