Jurisdiction to Award Costs of Interlocutory Applications

Does a trial judge have jurisdiction to award or deny costs of an interlocutory application heard by a different presider?

The above question recently arose in the context of an action in damages for personal injuries suffered in a motor vehicle accident. The plaintiff had served the defendant with an expert report of the plaintiff’s family physician in which the family physician recommended that the plaintiff be referred to a specialist in physical medicine, also known as a physiatrist. However, no referral to a physiatrist was ever made and the plaintiff was never seen by a physiatrist. The defendants immediately applied to compel the plaintiff to attend an independent medical examination by a physiatrist. The master denied the application but did not address costs of the application. In a second application, the defendants applied to adjourn trial to allow time to obtain an opinion of a physiatrist. This application was also denied, and costs in the cause were awarded to the plaintiff. Trial proceeded for nine days. After hearing the evidence at trial, the trial judge found that the evidence of a physiatrist should have been before the court and denied costs of the two applications to the plaintiff. The plaintiff appealed the order denying costs. The Court of Appeal granted leave to appeal, specifically noting that the issue raised an important point of practice that needs to be clarified. The Court of Appeal will hear the appeal in January 2016.

While the primary issue on appeal centers on the jurisdiction of a trial judge to award costs of interlocutory applications, the underlying question concerns who is better positioned to make an order for costs of an interlocutory application – the master or judge hearing a discrete matter at an application or the trial judge who assesses the case in its entirety with the benefit of hearing all the evidence at trial.

Prior to the introduction of the Supreme Court Civil Rules in 2010, the issue appeared straightforward – costs of interlocutory applications were awarded in the cause. However, the language of the relevant provisions now appear to explicitly vest jurisdiction for costs of interlocutory applications in a trial judge. Rule 14-1(15) now awards the court jurisdiction to award or deny costs of “some particular application.” Rule 14-1(14) awards the court jurisdiction to award or deny costs for any matter related to an improper or unnecessary act or omission committed by or on behalf of a party. Rules 14-1(9) and 14-1(12) confer jurisdiction to a trial judge to deny costs to a successful party for interlocutory applications. Crucially, the wording of these Rules support the object of the Supreme Court Civil Rules set out in Rule 1-3(1) – to secure the just, speedy, and inexpensive determination of every proceeding on its merits.

The Court of Appeal’s ruling is likely to provide welcome certainty and clarity on this point of practice.