12.03.05
Blood from a Stone
I had never thought that it made any difference in making a costs award whether the paying party had the means to pay. This has always been a factor on a solicitor-client assessment, but on December 1, 2005, in Euteneier v. Lee, Justice Cronk of the Court of Appeal declared that ability to pay a costs award is a factor in making a costs disposition. She held that to award costs in that case “would visit an unfair and onerous human and financial hardship” on the unsuccessful party. No costs were awarded. Query whether this principle applies equally to quantum as to whether costs should be awarded at all. This principle is long overdue. Take note, class action plaintiffs.