In Bowman v Kimberly-Clark Corporation, 2024 BCSC 1975, the British Columbia Supreme Court held that non-parties are entitled to tariff costs for responding to document production applications—but are not entitled to full indemnity costs. The plaintiff had initially sought records from various non-party retailers but abandoned the application after oral argument.
The non-party retailers sought to recover their "reasonable legal expenses and disbursements of responding to the application." In the normal course, the court can award costs on the basic, common scale of tariff costs as calculated under the Supreme Court Civil Rules or, as requested by the non-party retailers, to award costs on a full indemnity basis. Costs awarded on the tariff scale are usually less than the actual amount of legal fees incurred.
Notably, the restrictions on costs in Section 37 of the Class Proceedings Act do not apply to non-parties to the certification application or certified class proceeding. The Court held that a costs award was appropriate here as the non-party retailers had suffered the expense and inconvenience of responding to the plaintiff's application. The Court, however, declined to deviate from the usual rule of tariff costs. Accordingly, the non-party retailers were awarded their costs at Scale B as per the Supreme Court Civil Rules.
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- The Court confirmed that non-parties are in a special circumstance related to litigation but are "participants in democracies governed by the rule of law," and that they have a duty to "cooperate in the effective resolution of legal disputes between other citizens."
- In deciding the appropriate costs award was tariff costs, the court relied heavily on the reasons of A.L. Sott Financial (Newton) Ltd. v Bauman, which canvasses the jurisprudence pertaining to costs orders where applications involve non-parties.
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