What is the current test for apportioning costs under Rule 57(15)?

British Columbia, Canada


The following excerpt is from Movassaghi v. Steels Industrial Products Ltd., 2013 BCSC 2040 (CanLII):

Courts considering this rule have continued to refer to the principles developed under the former Rule 57(15) which allowed the court to award costs that relate to “some particular issue or part of the proceeding”: see for example Luu v. Wang, 2012 BCSC 626. Courts have continued in some cases to do an issue-by-issue analysis to determine whether the discretion should be exercised to apportion costs because a party who ultimately lost the case was successful on a number of issues.

The leading case on apportionment of costs remains Sutherland v. Attorney General of Canada, 2008 BCCA 27. The court set out the test for apportionment under the former rule at para. 31: The test for the apportionment of costs under Rule 57(15) can be set out as follows: (1) the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial; (2) there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues; (3) it must be shown that apportionment would effect a just result.

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