The Rules of Civil Procedure require any party who intends to seek the costs of a step in a proceeding to prepare a Form 57B costs outline, to provide a copy to every other party and to bring it to the hearing.  The costs outline provides sufficient detail to guide the court in apportioning costs to the successful party.
In a recent decision, Ontario Superior Court of Justice faced an issue of whether a successful party can seek costs that exceed the amount listed in its costs outline.
In Kossay El-Khodr v. Northbridge Commercial Insurance Company,  the applicant, Kossay El-Khodr sought the direction of the court in regards to minutes of settlement he had signed with Northbridge Commercial Insurance Company (Northbridge) relating to his claim against another insurer for accident benefits. The application was dismissed, and Northbridge was found to be entitled to the settlement funds of $385,000. The parties disagreed on the amount of costs awarded to Northbridge.
The applicant’s counsel brought a costs outline to the hearing, where he indicated that, if successful on the application, he would request an all-inclusive amount (fees, disbursements and HST) of $18,781.62. Counsel for Northbridge filed an outline where he indicated that if successful, Northbridge would seek partial indemnity fees of $6000 and disbursements of $490. After the decision was released in Northbridge’s favour, Northbridge delivered costs submissions stating that due to inadvertence, a number of hours of work had been omitted from the Northbridge costs outline. Counsel also requested an increase to his counsel fee to match the amount sought by the applicant’s counsel. In total, Northbridge sought $13,612.53.
The court expressed that the purpose of a costs outline is to force a party to commit to the amount it will be seeking in costs, so that, in the event that it is unsuccessful, it cannot then say that the proceeding or the motion was unimportant or simple in order to reduce the costs which would otherwise be payable. In addition, costs outline serve a function in helping the court assess reasonableness of costs claimed by comparing costs outlines of the parties.
Importantly, the court stated at paragraph 15 that:
“a party which understates its costs on its Form 57B, inadvertently or intentionally, and is later permitted to ask for a higher amount, would have the benefit of potentially driving down the costs it would be required to pay if it is unsuccessful without any corresponding detriment if successful”.
The court ordered the applicant to pay the costs originally requested by Northbridge in its cost outline.
A costs outline is an important and often overlooked advocacy tool for litigants. It allows parties to clearly set out their respective expectations in the event of success in a proceeding. It is intended to be a reliable tool for the court to consider when assessing costs and reasonableness. Parties are expected to commit to their costs positions in their costs outlines and will not be permitted to ask for more costs after they learn of their success, as doing so, would defeat the purpose of a costs outline.
 Sub rule 57.01(6)
 2020 ONSC 3160