Duhaime's Law Dictionary


Costs if Demanded Definition:

An award of costs which is explicitly left to the discretion of the party to whom costs are awarded.

Related Terms: Costs

Also known as costs if asked.

Such an award is really meaningless as the prosecution or not of a bill of costs once costs have been awarded is always at the discretion of the successful litigant.

As the court said in Betrand:

"I do not know why the words if demanded are sometimes used in judgments of this Court to qualify the award of costs....

""The inclusion of the words if demanded in an award of costs is by no means rare, although reported judicial views as to the meaning intended to be given to them certainly are. Very often, as in this case, those words are used where the unsuccessful party is facing virtual financial disaster. However, the conclusive argument that these words could not be included in a judgment with the intention that they would in some way alter the effect of the usual award of costs is that the successful party is never paid his costs unless he demands them. Although the Court orders the unsuccessful party to pay his opponent's taxed costs, it is up to the beneficiary of the order to draft his bill of costs, take out an appointment for their taxation and serve his opponent with notice thereof. If that procedure is not a clear indication of his intention to demand his costs, I do not know what would be. And, of course, unless and until he does this, his costs will not be paid, aside from an informal agreement between the parties as to costs....

"[I]n the absence of any general judicial direction to do so, I cannot find that I can or should tax the bill of costs in this case any differently than I would have, if those words "if demanded" had been omitted from the judgment."

In Quinn, a 72-year old woman sued an airline because of a broken back, and other injuries suffered during sudden turbulence. The negligence claim was dismissed but to gently suggest to the successful airline that it nor persue costs against the senior, the award was worded as follows:

"As to costs, the defendant as the successful party is entitled to its party-and-party costs. As I understand that it was important to the defendant to defend the claim, ... I believe that the proper statement at present as to costs is that the defendant will have its party-and-party costs, if demanded."

REFERENCES:

  • Betrand v Bowman, [1969] 2 O.R. 385
  • Quinn v. Canadian Airlines International Ltd., 23 C.C.L.T. (2d) 203, 18 O.R. (3d) 326, 48 A.C.W.S. (3d) 222

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