Civil Procedure Rules of Nova Scotia  
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Part 16 - Costs, Order, and Enforcement

Rule 77 - Costs

Scope of Rule 77
77.01 (1) The court deals with each of the following kinds of costs:
party and party costs, by which one party compensates another party for part of the compensated party’s expenses of litigation;
solicitor and client costs, which may be awarded in exceptional circumstances to compensate a party fully for the expenses of litigation;
fees and disbursements counsel charges to a client for representing the client in a proceeding.
  (2) Costs may be ordered, the amount of costs may be assessed, and counsel’s fees and disbursements may be charged, in accordance with this Rule.
General discretion (party and party costs)
77.02 (1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.
  (2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement.
Liability for costs
77.03 (1) A judge may order that parties bear their own costs, one party pay costs to another, two or more parties jointly pay costs, a party pay costs out of a fund or an estate, or that liability for party and party costs is fixed in any other way.
  (2) A judge may order a party to pay solicitor and client costs to another party in exceptional circumstances recognized by law.
  (3) Costs of a proceeding follow the result, unless a judge orders or a Rule provides otherwise.
  (4) A judge who awards party and party costs of a motion that does not result in the final determination of the proceeding may order payment in any of the following ways:
in the cause, in which case the party who succeeds in the proceeding receives the costs of the motion at the end of the proceeding;
to a party in the cause, in which case the party receives the costs of the motion at the end of the proceeding if the party succeeds;
to a party in any event of the cause and to be paid immediately or at the end of the proceeding, in which case the party receives the costs of the motion regardless of success in the proceeding and the judge directs when the costs are payable;
any other way the judge sees fit.
  (5) A judge may order that costs awarded to a party represented by counsel with Nova Scotia Legal Aid or Dalhousie Legal Aid be paid directly to the Nova Scotia Legal Aid Commission or Dalhousie Legal Aid Service.
Relief from liability because of poverty
77.04 (1) A party who cannot afford to pay costs and for whom the risk of an award of costs is a serious impediment to making, defending, or contesting a claim may make a motion for an order that the party is to pay no costs in the proceeding in which the claim is made.
  (2) A motion for an order against paying costs must be made as soon as possible after either of the following occurs:
the party is notified of a proceeding the party wishes to defend or contest;
a claim made by the party is defended or contested.
  (3) An order against paying costs may be varied when the circumstances of the party change.
  (4) An order against paying costs does not apply to costs under Rule 88 - Abuse of Process, Rule 89 - Contempt, or Rule 90 - Civil Appeal.
Assessment of interlocutory costs
77.05 (1) The provisions of TARIFF C apply to a motion, unless the judge hearing the motion orders otherwise.
  (2) A judge may assess costs, and provide for payment of costs, when a motion is withdrawn or abandoned.
Assessment of costs under tariff at end of proceeding
77.06 (1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act, a copy of which is reproduced at the end of this Rule 77.
  (2) Party and party costs of an application in court must, unless the judge who hears the application orders otherwise, be assessed by the judge in accordance with TARIFF A as if the hearing were a trial.
  (3) Party and party costs of a motion or application in chambers, a proceeding for judicial review, or an appeal to the Supreme Court of Nova Scotia must, unless the presiding judge orders otherwise, be assessed in accordance with TARIFF C.
Increasing or decreasing tariff amount
77.07 (1) A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs.
  (2) The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application:
the amount claimed in relation to the amount recovered;
a written offer of settlement, whether made formally under Rule 10 - Settlement or otherwise, that is not accepted;
an offer of contribution;
a payment into court;
conduct of a party affecting the speed or expense of the proceeding;
a step in the proceeding that is taken improperly, abusively, through excessive caution, by neglect or mistake, or unnecessarily;
a step in the proceeding a party was required to take because the other party unreasonably withheld consent;
a failure to admit something that should have been admitted.
  (3) Despite Rule 77.07(2)(b), an offer for settlement made at a conference under Rule 10 - Settlement or during mediation must not be referred to in evidence or submissions about costs.
Lump sum amount instead of tariff
77.08   A judge may award lump sum costs instead of tariff costs.
Amount under a Rule about indemnification
77.09 (1) This Rule 77.09 applies to an indemnification under any of the following Rules, or a similar Rule:
Rules 4.18(4) and 4.21(d), (e), or (f), of Rule 4 - Action;
Rules 5.11(3) and 5.15(c), of Rule 5 - Application;
Rules 10.12(4) and (5), of Rule 10 - Settlement;
Rule 18.19(3), of Rule 18 - Discovery;
Rule 19.08(2), of Rule 19 - Interrogatories;
Rule 20.06, of Rule 20 - Admission;
Rules 23.09(8) and 23.12(3), of Rule 23 - Chambers Motion;
Rule 39.04(5), of Rule 39 - Affidavit;
Rule 50.14(4), of Rule 50 - Subpoena;
Rules 51.02(3) and 51.03(2), of Rule 51 - Conduct of Trial;
Rule 55.13(5), of Rule 55 - Expert Opinion;
Rule 88.02(d), of Rule 88 - Abuse of Process.
  (2) A judge may order indemnification for all of the following amounts under a Rule to which this Rule 77.09 applies:
a substantial contribution towards the cost of necessary services of counsel, or a fair payment for the work of a person who acts on their own;
necessary and reasonable out of pocket expenses or disbursements;
fair compensation for a harm or loss referred to in the applicable Rule.
  (3) The indemnification is payable when the order is made, unless the order provides otherwise.
Disbursements included in award
77.10 (1) An award of party and party costs includes necessary and reasonable disbursements pertaining to the subject of the award.
  (2) A provision in an award for an apportionment of costs applies to disbursements, unless a judge orders otherwise.
Set-off against party and party costs
77.11   A judge who awards party and party costs may order a set-off against another award of costs or any other amount.
Award of costs in other circumstances
77.12 (1) A judge may award, assess, and provide for payment of costs for any act or omission of a person in relation to a proceeding or an order.
  (2) A judge who determines that expenses are caused by the improper or negligent conduct of counsel may order any of the following:
counsel not recover fees from the client;
counsel reimburse the client for costs the client is ordered to pay to another party as a result of counsel’s conduct;
counsel personally pay costs.
Counsel’s fees and disbursements: entitlement and assessment
77.13 (1) Counsel is entitled to reasonable compensation for services performed, and recovery of disbursements necessarily and reasonably made, for a client who is involved in a proceeding.
  (2) The reasonableness of counsel's compensation must be assessed in light of all the relevant circumstances, and the following are examples of subjects and circumstances that may be relevant on the assessment:
counsel's efforts to secure speed and avoid expense for the client;
the nature, importance, and urgency of the case;
the circumstances of the person who is to pay counsel, or of the fund out of which counsel is to be paid;
the general conduct and expense of the proceeding;
the skill, labour, and responsibility involved;
counsel's terms of retention, including an authorized contingency agreement, terms for payment by hourly rate, and terms for value billing.
Counsel’s fees and disbursements: contingency fee agreement
77.14 (1) A client may make an agreement with a lawyer under which payment for all or part of the lawyer's services or disbursements in a proceeding is conditional on success.
  (2) A contingency fee agreement may provide for payment of a reasonable amount to compensate for services and the risk taken by the lawyer, and the amount may be based on a gross sum, a percentage of the amount recovered, or any other reasonable means of calculation.
  (3) A litigation guardian, a guardian under the Guardianship Act, a statutory representative, the representative of an estate, or a power of attorney may enter into a contingency fee agreement on behalf of a represented party or estate and a payment due under the agreement may, with approval of a judge, be made out of proceeds of a claim advanced for the represented party or estate.
  (4) A contingency fee agreement must be in writing, be dated and signed by each person who makes the agreement, and contain all of the following:
the names and addresses of the lawyer and each client bound by the agreement;
a concise description of the client's claim;
a condition prescribing the contingency upon which services or disbursements are to be paid;
a term providing for any part of the services or disbursements the client is required to pay regardless of the contingency, or providing that there are no such services or disbursements;
a term providing the amount to be paid on the contingency expressed either as a gross sum or by a stated formula;
the responsibilities of the parties if the solicitor and client relationship terminates before the claim is settled or determined;
a statement that the client has the right to have the agreement and any payment due under it reviewed for the reasonableness and necessity of the charges by an adjudicator under the Small Claims Court Act or a judge.
  (5) A lawyer must do all of the following after a contingency agreement is signed and dated by the parties:
immediately deliver a copy to each client;
place the original in a sealed envelope;
after the envelope is sealed, keep it so that it can be produced on order of an adjudicator under the Small Claims Court Act or a judge.
  (6) A lawyer may seek payment under a contingency agreement only if the agreement conforms with Rule 77.14(4) and the lawyer complies with Rule 77.14(5).
Charging order
77.15 (1) Counsel who represents a party in a proceeding in which the party claims an order for the payment or recovery of money or a remedy involving real or personal property may make a motion for an order securing counsel’s reasonable and necessary fees and disbursements against the party’s right to the money or the party’s interest in property.
  (2) An order securing counsel’s fees and disbursements may attach an obligation to pay the money or provide for a lien on the property.
Taxation of costs
77.16 (1) A judge who awards costs may fix the amount or order that the amount, or a part of the amount, be fixed by taxation before an adjudicator under the Small Claims Court Act.
  (2) A judge may order that the amount of fees and disbursements owing by a party to the party’s counsel be fixed by taxation before an adjudicator.
  (3) An adjudicator who fixes the amount of fees and disbursements owing to counsel may disallow fees for a service, or disallow a disbursement, that is unnecessary or otherwise unreasonable.
  (4) The adjudicator may allow fees for a service, or allow a disbursement, that is rendered, or incurred, on the client’s specific instruction even if the service, or disbursement, is otherwise unreasonable.
  (5) A certificate of taxation is final and conclusive of the amounts certified on it against a person who was notified of the taxation, except for each of the following:
the certificate may contain terms upon which the amount is to be calculated;
the order may contain terms limiting the taxation or providing conditions for payment of some or all of the taxed amount;
the certificate may be varied on appeal.
Appeal of taxation
77.17   An appeal of a certificate of taxation may be brought and determined in accordance with Rule 7 - Judicial Review and Appeal.
Reference to adjudicator
77.18   A question about costs may be referred to an adjudicator under the Small Claims Court Act, in accordance with Rule 11 - Reference.