IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Sydney Cooperative Society Ltd. v. Coopers & Lybrand, 2006 NSSC 276
Date: 20060918
Docket: S.N. 100149
Registry: Sydney
Between:
Sydney Cooperative Society Limited
Plaintiff
and
Coopers & Lybrand
Defendant
and
Coopers & Lybrand
Plaintiff (By Counterclaim)
and
Sydney Cooperative Society Limited
Defendant (By Counterclaim)
Judge: The Honourable Justice Arthur J. LeBlanc
Heard: February 27th, 2006, in Sydney, Nova Scotia
Counsel: Harvey McPhee and Robin Gogan, for the plaintiff
Marjorie Hickey, Q.C., for the defendant
By the Court:
[1] This is a hearing on costs. The action was commenced in 1994, respecting allegations by the plaintiff that the defendant auditors failed to detect the theft of money by an employee of the plaintiff Sydney Co-op, who wrote fraudulent cheques between 1987 and 1993. The trial decision, given orally on June 5, 2002 and in writing on March 19, 2003, is reported at 213 N.S.R. (2d) 115. I found the defendants liable in negligence and breach of contract on account of the audits conducted between 1987 and 1993. However, I stated:
[229] I have determined that the plaintiffs' recovery should be limited to 50% of the total award as I find that the plaintiffs were contributorily negligent. By virtue of the finding of finding of contributory negligence, the plaintiffs will recover 50% of the following:
Proven Claim ‑ $517,284.70
Estimated Claim ‑ $ 35,000.00
Cost of Investigation ‑ $ 9,839.40
[230] The plaintiffs shall recover simple interest at the rates set out in the calculation prepared by the Plaintiff's counsel, as amended, to the date of the Order. In accordance with s. 3 of the Contributory Negligence Act, the plaintiffs shall have 50% of their costs and disbursements as taxed, subject to any offer of settlement made pursuant to the Civil Procedure Rules.
[2] The conduct of the proceeding involved extensive discovery and disclosure of documents, several interlocutory applications and offers to settle and 17 days of trial. An Order for Judgment, consented as to form, issued on November 5, 2004. Among the provisions of the order was the direction that “the Plaintiffs shall be entitled to fifty percent (50%) of their costs and disbursements as taxed, subject to any offer of settlement made pursuant to the Civil Procedure Rules.”
THE DEFENDANT’S ENTITLEMENT TO SEEK COSTS
[3] As a preliminary matter, the plaintiffs claim that the wording of the Order bars the defendant from collecting costs, despite the division of liability. According to the plaintiffs the lack of reference to the defendant’s entitlement to costs should be inferred as an exercise of the Court’s discretion to deny the defendant costs.
[4] The defendant argues that the decision did not address its entitlement to costs and says this issue is still open for decision. Alternatively, the defendant argues, if the effect of the wording is to deny it costs, the Court can still address the matter pursuant to Civil Procedure Rules 15.07 or 15.08. These Rules state:
Amendment of judgments and orders
15.07. Clerical mistakes in judgments or orders, or errors arising therein from any accidental mistake or omission, or an amendment to provide for any matter which should have but was not adjudicated upon, may at any time be corrected or granted by the court without appeal.
Reversal or variation of order
15.08. Where a party is entitled to:
(a) maintain a proceeding for the reversal or variation of an order upon the ground of a matter arising or discovered subsequent to the making of the order;
* * *
(e) any further or other relief than that originally granted.
He may apply in the proceeding for the relief claimed.
[5] I am satisfied that the matter of the defendant’s costs was one that was not dealt with. The decision and the order specified that the plaintiffs should have half their costs, in view of the mixed result. The lack of a reference to the defendant’s costs was not a signal that the normal rule that costs follow the event where liability is divided was to be overruled or ignored in this case.
[6] In any event, I am satisfied that Rule 15.07 provides the Court with authority to rule on this matter, whether because it was not dealt with due to an accidental “slip or omission” or because it “should have” been, but was not, adjudicated upon. It is significant that Rule 15.07, by its wording and interpretation, is broader than the traditional “slip rule”, which permitted the correction of errors. In Wesco Distribution-Canada Inc. v. Stannair Energy Management Group (2001), 199 N.S.R. (2d) 208 (S.C.) Gruchy J. said:
21 The application is made herein pursuant to Rule 15.07 and Rule15.08.... Rule 15.07 is known as the slip rule and is usually the vehicle used by the court to correct accidental slips or omissions. The matter now before me, however, is not what would be considered an accidental slip or omission; but the Rule does go on to say that it may amend an order to provide for any matter which should have been but was not adjudicated upon. [Counsel] has referred to the cases of Wood v. Wood (1982), 56 N.S.R. (2d) 217 (N.S. T.D.) and Burnac Leaseholds Ltd. v. Yarmouth (Municipality) (January 14, 1981), Doc. 29039 (N.S. S.C.) (unreported). She has also referred to the case of Dalziel v. Dalziel (1977), 3 B.C.L.R. 73 (B.C. S.C.) which emphasizes, I think appropriately, that the present Rule does go beyond an accidental slip or omission and does give the court authority to amend an order to provide what actually should have been provided in the first instance. That raises the question: What should have been provided in the first instance?....
[7] In this case, the Order should have provided that the defendant was entitled to seek costs in accordance with the division of liability. It is not suggested that there is any prejudice to the plaintiffs; the defendant has always asserted its claim for costs. As such, the defendants are not foreclosed from seeking costs. It was an accidental slip or omission that resulted in neither the reasons nor the Order stating that the defendant’s right to seek costs was preserved. Even if this were not the case, I would hold that the defendant’s entitlement to seek costs should have been adjudicated upon.
COSTS
[8] The principles of party-and-party costs are well known. An award of costs should provide “a substantial contribution towards the parties' reasonable expenses in presenting or defending the proceeding, but should not amount to a complete indemnity”: Hines v. Registrar of Motor Vehicles (N.S.) (1990), 105 N.S.R. (2d) 240 (S.C.T.D.) at para. 8. Rule 63.02(1) describes the Court’s discretion:
(1) Notwithstanding the provisions of rules 63.03 to 63.15, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the court, and the court may,
(a) award a gross sum in lieu of, or in addition to any taxed costs;
(b) allow a percentage of the taxed costs, or allow taxed costs from or up to a specific stage of a proceeding;
(c) direct whether or not any costs are to be set off.
[9] Unless the Court orders otherwise, costs follow the event: Rule 63.03(1). Party-and-party costs are fixed by the Court, with reference to the “amount involved”, as set out in Rule 63.04:
(1) Subject to rules 63.06 and 63.10, unless the court otherwise orders, the costs between parties shall be fixed by the court in accordance with the Tariffs and, in such cases, the "amount involved" shall be determined, for the purpose of the Tariffs, by the court.
(2) In fixing costs, the court may also consider
(a) the amount claimed;
(b) the apportionment of liability;
(c) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding;
(d) the manner in which the proceeding was conducted;
(e) any step in the proceeding which was improper, vexatious, prolix or unnecessary;
(f) any step in the proceeding which was taken through over‑caution, negligence or mistake;
(g) the neglect or refusal of any party to make an admission which should have been made;
(h) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence;
(I) whether two or more plaintiffs, represented by the same solicitor, initiated separate actions unnecessarily; and
(j) any other matter relevant to the question of costs.
[10] A new Tariff of Costs and Fees came into effect in September 2004. The parties agree, however, that the appropriate tariff is the former tariff, which was in effect when the proceeding was commenced. I am satisfied that the former tariff should apply, as it was in effect throughout the course of the litigation, at the time of trial and when the trial decision was released. The parties also agree that Tariff A – the “Tariff of Fees for Solicitor’s Services Allowable to a Party Entitled to Costs on a Decision or Order in a Proceeding” – is the appropriate Tariff.
[11] The parties disagree on the “amount involved”. The old Tariff provides:
In these Tariffs, the “amount involved shall be
(a) where the main issue is a monetary claim which is allowed in whole or in part, an amount determined having regard to
(I) the amount allowed,
(ii) the complexity of the proceedings, and
(iii) the importance of the issues; [...]
[12] The parties also disagree on the appropriate scale of the tariff to apply. The Plaintiffs seek costs on Scale 5 of Tariff A. The defendant submits that Scale 3 is appropriate. The plaintiffs also seek a lump sum award of costs in the amount of $100,000.00.
COSTS AND THE DIVISION OF LIABILITY
[13] The plaintiffs refer to Flatley v. Denike (1997), 32 B.C.L.R. (3d) 97, where the British Columbia Court of Appeal stated that “where the defendant suffers no damage or loss, but liability is divided, the defendant must pay the plaintiff the same proportion of the plaintiff's costs as the defendant is liable for the plaintiff's damages, but the plaintiff is not liable to pay any portion of the defendant's costs” (para. 22). The plaintiffs’ position is that, although liability for their damages was apportioned equally, there has been no loss or damage to the defendant, and hence the defendant is not entitled to costs.
[14] The defendant claims it is entitled to fifty per cent of its costs. The defendant states that the general rule in Nova Scotia is that an award of costs follows the division of liability. In addition to Rule 63.03(1), which provides that costs follow the event, the defendant refers to section 6 of the Contributory Negligence Act, which provides that “[w]here the damages are occasioned by the fault of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just.”
[15] In Mader v. Lahey (1997), 176 N.S.R. (2d) 143 (S.C.) Edwards J. reviewed the law on costs where there is contributory negligence. He observed:
[19] The determination of the proper apportionment of costs in a contributory negligence case in which both the plaintiff and the defendant were found negligent and there was no counterclaim by the defendant was first considered by Chief Justice Cowan in Tzagarakis v. Stevens (1968), 3 N.S.R. 1965‑69 453 (T.D.). In that case the Chief Justice reviewed the facts before him as well as a number of previous decisions. He concluded as follows at page 461:
"I have made enquiries as to the practice recently followed by trial judges in this Division with regard to costs, where there is a division of fault and there is no counterclaim and in cases where there is a counterclaim.
"I find that the practice since Brewster v. Spicer, [(1959), 42 M.P.R. 232] has been to award the plaintiff who is found partly at fault a portion of his costs, such portion to be the same percentage recovery as is found with respect to damages, and to allow the defendant a portion of his costs, such portion being the same percentage as is found to be applicable to fault on the part of the plaintiff. This practice has, apparently, been sanctioned by the Appeal Division in the case of Langille v. Zwicker (1967), 66 D.L.R.(2d) 196; 3 N.S.R. 165‑69 448, where, in an action by a pedestrian against the operator of a motor vehicle, the jury found that the operator was not at fault and judgment was entered for the defendant with costs. The Appeal Division allowed the appeal and apportioned fault 50/50 between the parties and Currie, C.J.N.S., said, at p. 199:
'The costs should be based on 50% to each party, both as to the trial and the appeal.'
"This rule appears to apply whether there is a counterclaim or not."
[16] Edwards J. concluded that, in the absence of special circumstances justifying a departure from the rule, “the rule on apportionment of costs in a negligence action in which contributory negligence is found against the plaintiff (whether or not there is a counterclaim) is to apportion the costs between the parties in the same proportion as liability has been found” (para. 32).
[17] The defendant argues that Flatley should be distinguished on the basis of the language of the statutes involved. The British Columbia Negligence Act provided that a person who has sustained “damage or loss” shall be entitled to recover for that damage or loss from “each other person who is liable to make good the damage or loss” (s. 2(c)). The liability for costs of the parties to an action “shall be in the same proportion as their respective liability to make good the damage or loss” (s. 3). As the British Columbia Courts have interpreted these provisions, a defendant who has not sustained damage or loss may not collect damages, even if liability is divided. This statutory language bears little resemblance to the Nova Scotia Contributory Negligence Act. Further, the defendant notes, Mader was decided after Flatley (though in the same year) and does not refer to the British Columbia decision.
[18] I am satisfied that the law in Nova Scotia is as set out in Mader. As a general rule, each party is entitled to their costs according to the division of liability.
THE AMOUNT INVOLVED
[19] The plaintiffs submit that the complexity of the proceeding – arising from the subject matter and the volume of evidence – should be considered in determining the amount involved. They also suggest that the Court should consider the public interest in determining the standard of care of auditors, delineating the responsibilities of auditors and management, and determining the scope of responsibility of an organization with a volunteer board of directors.
[20] The plaintiffs submit that the losses determined at trial, along with pre-judgment interest, amount to $911,052.38 (comprising proven losses of $562.124.10 plus pre-judgment interest). They submit that this figure – including prejudgment interest – should be treated as the “amount involved.” In support of including pre-judgment interest, they refer to Campbell‑MacIsaac v. Deveaux (2005), 230 N.S.R.(2d) 304 (S.C.). In that case, Gruchy J. said:
[61] While the rule refers to the "amount claimed", it is clear from the cases that inordinately high claims ought not to be considered, but rather, consideration of the amount of the ultimate award is essential. In the case before me the amount awarded against Deveaux, as reduced by the Court of Appeal, was two million one hundred and sixty‑two thousand, seven hundred and twenty‑three dollars ($2,162,723.00). That is the amount resulting from the first step.
[62] The plaintiffs add to this sum the amount of one hundred and thirty‑three thousand three hundred and eighty‑four dollars ($133,384.00) for pre‑judgment interest a figure agreed upon by Lombard. Lombard says this amount should not be included in the "amount involved" for the purpose of party and party costs and refer to my decision in Skeffington v. McDonough and Vanamburg, wherein I did not allow interest as a costs factor. I was clear in that decision, however, that the inclusion of that factor might be appropriate in some cases. For a more complete explanation of the circumstances of that case I refer to my decision in the matter of damages in that case (found in 112 N.S.R.(2d) 52...), wherein I found that the plaintiff delayed the prosecution of the litigation and failed to mitigate his damages. In the instant case there is no suggestion of either of these factors. In addition, a considerable portion of the plaintiff's damage herein came from the loss of the commercial enterprise of a dental practice ‑ which ultimately necessitated commercial borrowings ‑ clearly a factor to be considered in the "amount involved".
[63] I will allow the figure of one hundred and thirty‑three thousand three hundred and eighty‑four dollars ($133,384.00) to be included in the "amount involved" for the total sum of two million two hundred and ninety‑six thousand one hundred and seven dollars ($2,296,107.00).
[21] The defendant submits that a more appropriate “amount involved” would be based on the amount actually awarded. In this case, the amount of damages actually awarded, after taking contributory negligence into account, is $281, 062.05. Adding pre-judgment interest, the plaintiffs recovered $455,526.19. The defendant seeks an “amount involved” based on the damages actually recovered, without prejudgment interest. In support of omitting the interest, the defendant refers to Gay v. MacDonald (1998), 170 N.S.R.(2d) 322 (S.C.), where Goodfellow J. said, “[w]ith respect to the determination of the "amount involved", prejudgment interest is not to be taken into account” (para. 24).
[22] In this case, following the reasoning of Gruchy J. in Campbell-MacIsaac, I am prepared to include prejudgment interest in the calculation of the “amount involved.” The “amount involved” will be based on the amount of the proven claim, as proposed by the defendant, as follows:
Proven claim $517,284.70
Estimated claim $ 35,000.00
Costs of investigation $ 9,839.40
Subtotal $562,124.10
Reduced by 50% $281,062.05
Interest $174,464.14
Total $455,526.19 .
[23] The “amount involved” is $455,526.19.
THE SCALE
[24] The plaintiffs claim that Scale 5 is appropriate, in view of the complexity of the proceeding. The defendant argues for the application of Scale 3, given the lack of inappropriate conduct by the parties, the costliness to all parties, and the split outcome. I accept the position of the plaintiffs and will apply Scale 5.
OFFERS TO SETTLE
[25] Rule 41A.09(1) provides:
41A.09. (1) Unless ordered otherwise, where an offer to settle was made by a plaintiff at least seven (7) days before the commencement of the trial or hearing of the proceeding and was not revoked or accepted prior to the commencement of the trial or hearing, and where that plaintiff obtains a judgment as favourable or more favourable than the terms of the offer to settle, that plaintiff shall be entitled to party and party costs plus taxed disbursements to the date of the service of the offer to settle and thereafter to taxed disbursements and double the party and party costs.
[26] The history of offers to settle in the proceeding is roughly as follows:
the defendant filed an offer to settle for $100,000.00, including pre-judgment interest and costs, in July 1994. The plaintiff filed an offer to settle for $650,000.00 in December 1997. In June 2001, the defendant offered to pay fifty per cent of “the amount of fraudulent cheques cashed after the date (during the audit for the 1989 fiscal year) when cheque number 0738 ... was selected by the auditor for the cash disbursement sample.” The rest of the loss would be attributed to contributory negligence. The defendant would pay pre-judgment interest, and costs as determined by the Court. The plaintiffs responded on July 25, 2001, with an offer to settle for $750,000.00, including pre-judgment interest and costs. On August 8, 2001, the defendant offered an all-inclusive settlement of $400,000.00. This offer expired on August 10, 2001. The plaintiffs’ final offer to settle was filed on August 28, 2001, for an all-inclusive settlement of $600,000.00.
[27] The plaintiffs submit that the August 28, 2001 offer, which was neither accepted nor revoked, triggers Rule 41A.09(1). They say their legal fees after that date were $103, 378.57, which they say represents 55 per cent of their total legal fees. According to Mr. McPhee’s affidavit at para. 4, the total legal fees were $320, 845.70. It appears that the amount incurred after August 28, 2001, represents just over 32 per cent of the total. The defendant argues that the offer to settle does not trigger Rule 41A, submitting that interest and costs should be assessed as of the date of the offer, not the date of judgment. This amount, they say, does not approach $600,000.00.
[28] I am satisfied that this is not an appropriate case to invoke Rule 41A.09. Rather than attempting to dissect the August 28, 2001 offer, I will take this factor into account in considering the plaintiffs’ request for lump sum costs.
LUMP SUM COSTS
[29] The plaintiffs claim that an award of costs under the Tariff is inadequate and that this is an appropriate case for an award of lump sum costs, in the amount of $100,000.00. The defendant argues that lump sum costs are usually awarded in situations where the plaintiff has succeeded completely, rather than where liability has been apportioned equally.
[30] In Williamson v. Williams (1998), 223 N.S.R.(2d) 78 (C.A.) Freeman J.A. considered the principle that a costs order “should represent a substantial contribution ... but should not amount to a complete indemnity.” He explained:
[25] In my view a reasonable interpretation of this language suggests that a "substantial contribution" not amounting to a complete indemnity must initially have been intended to mean more than fifty and less than one hundred per cent of a lawyer's reasonable bill for the services involved. A range for party and party costs between two‑thirds and three‑quarters of solicitor and client costs, objectively determined, might have seemed reasonable. There has been considerable slippage since 1989 because of escalating legal fees, and costs awards representing a much lower proportion of legal fees actually paid appear to have become standard and accepted practice in cases not involving misconduct or other special circumstances.
[31] In Campbell v. Jones (2001), 197 N.S.R.(2d) 212 (S.C.) the plaintiff sought lump sum costs of $160,000.00. Moir J. allowed lump sum costs of $75,000.00. The actual fees were more than $200,000.00. Moir J. also considered the length of the trial and the fact that “the legitimate interests at stake exceed the mere monetary.” After reviewing the caselaw on lump sum awards, Moir J. summarized:
[69] ... [T]he discretion to award a lump sum is not so restricted as with an award of solicitor and client costs; tariff costs are usual and a lump sum is a departure from the usual; the discretion has been exercised where tariff costs would not produce a partial but substantial indemnification without artificially setting the “amount involved"; the objective of a partial but substantial indemnification may or may not be sufficient reason to exercise the discretion; care must be taken to avoid employing fixed percentages or embracing the party's actual bill over a more generalized assessment.
[32] The Court of Appeal reversed the trial judge’s decision in Campbell, including the costs order, but the majority did not comment on his analysis:
Campbell v. Jones (2002), 209 N.S.R.(2d) 81 (C.A.). Moir J.’s comments on costs have been cited in several cases subsequent to the Court of Appeal decision: see, for instance, Hardman Group v. Alexander (2003) 215 N.S.R. (2d) 280 (S.C.) and Campbell-MacIsaac v. Deveaux (2005) 230 N.S.R. (2d) 304 (S.C.).
[33] Applying Scale 5 of Tariff A to the amount involved ($455,526.19) provides party-and-party costs of $28,101.31. Scale 5 would provide $10,325.00 on the first $100,000.00 of the amount involved, plus 5 per cent of the amount over $100,000. On an amount involved of $455,526.19, this would be 5% of $355,526.19, or $17,776.31, for a total of $17,776.31 plus $10,325.00, or $28,101.31.
[34] Considering the offer to settle seven days before trial, I am prepared to add a lump sum of $10,000.00 to the plaintiffs’ tariff costs. Added to $28,101.31, this gives a total of $38,101.31, which represents roughly 12 per cent of the plaintiffs’ fees, which is appropriate after a fifty per cent reduction in accordance with the division of liability.
[35] With legal fees of $368,285.50, the defendant is entitled to recover on the same scale. I have not awarded the parties any additional costs on account of the length of the trial, the length of discoveries and the preparation time.
DISBURSEMENTS
[36] The plaintiffs’ disbursements, according to the list of disbursements in their solicitor’s affidavit, amount to $45,240.76, of which they claim fifty per cent, in accordance with the trial decision. The defendant submits that fifty per cent of its disbursements should be set off against fifty per cent of the plaintiffs’ disbursements. In its solicitor’s affidavit the defendant claims to have incurred total disbursements of $29,821.38. I allow fifty per cent of the disbursements of each of the parties: $22,620.38 to the plaintiffs and $14,910.69 to the defendant.
EXPERT FEES
[37] The plaintiffs retained the accounting firm Grant Thornton to carry out forensic audits for the years 1987-1993, which involved two forensic auditors from Grant Thornton (Glen Williams and Michelle Williams) reviewing the audits carried out by the defendant. According to their solicitor’s affidavit, the plaintiffs’ experts fees and disbursements were $153,509.13. Of this total, $6,785.00 relates to the discovery of Glen Williams and was paid by the defendant. Of the remaining $146,724.13, $4,830.00 relates to the discovery of Michelle Williams and $9,775.00 relates to compliance with undertakings given at discovery respecting the work of Glen Williams. These accounts, according to the plaintiffs’ solicitor’s affidavit, have been sent to the defendant but not paid.
[38] The plaintiffs say the fees for the audits performed by the defendant – that is, the audits that form the subject matter of the proceeding – amounted to about $100,000.00. The plaintiffs seek fifty per cent of their experts’ fees.
[39] Expert’s fees can only be recovered if retaining the expert was reasonable and necessary. Further, the amount claimed must be just and reasonable: Rhyno Demolition v. N.S. (A.G.) (2005), 233 N.S.R.(2d) 311 (S.C.) at paras. 32-33. The plaintiffs submit that the complexity of the financial issues before the Court made the retainer of forensic auditors reasonable and necessary.
[40] The plaintiffs maintain that the experts’ services were required because the defendant required proof of every instance of alleged negligence, justifying full recovery of half of the experts’ costs. The defendant maintains that the accounts are not sufficiently specific, as there is no breakdown of the time spent on various matters, such as audits, conferences, discovery and trial. There is no accounting of the total time spent on the file by the experts. As such, the defendant argues that it is impossible to establish whether the account is reasonable. The plaintiffs state that the defendants were paid approximately $20,000.00 per annum plus expenses, which they say makes a total in the range of $150,000.00 reasonable.
[41] The defendant also suggests that while expert evidence was required to prove the claim, it may not have been necessary to retain two experts, and it is therefore possible that there was duplication, for instance in preparing witnesses.
[42] I am satisfied that it was necessary for the plaintiff to obtain forensic audits for five fiscal years, which required the experts to prepare extensive and complex reports and attend discoveries and trial. My concern is that the plaintiffs did not require the experts to keep an accurate accounting of the time spent on the file, and by whom the work was done. The amount in question is significant, and the Court is essentially asked to approve the experts’ account carte blanche. It would be reasonable to expect such records from chartered accountants. As a result I am reducing the experts’ account by ten per cent. On a total of $153,509.13 this results in a reduction of $15,350.91, to an adjusted amount of $138,158.22. The plaintiffs are entitled to collect half of this, or $69,079.11.
CONCLUSION
[43] The plaintiffs will recover the following:
Costs $ 38,101.31
Disbursements $ 22,620.38
Experts’ fees $ 69,079.11
Total $129,800.80
[44] The defendants will recover the following:
Costs $28,101.31
Disbursements $14,910.69
Total $43,012.00
[45] There will be no costs awarded in respect of this hearing.
J.