Executive Summary: Key Legal and Evidentiary Issues

• Scope of the doctrine of functus officio and whether a Chambers judge can revisit a final solicitor-client costs order at the later assessment stage.
• Characterization of an owner/developer’s arguments on insurance, subrogation and double recovery as an impermissible collateral attack on the original costs award rather than a dispute about quantum.
• Interpretation of a condominium corporation’s liability insurance policy, including whether a unit owner is an “insured” for proceedings arising from his own intentional litigation against the corporation.
• Application of insurance subrogation principles to recovery of defence costs, including whether a separate subrogated action is required and whether waiver of subrogation or limitation arguments bar recovery.
• Interaction between condominium bylaws authorizing solicitor-client costs and ordinary costs principles, including whether insurer-funded defence costs create unlawful double recovery.
• Limits on raising new factual and legal theories (including new policy-interpretation arguments) for the first time on appeal, and the high standard of palpable and overriding error for interfering with factual findings on insurance status and subrogation.

Background facts and procedural history

Robin James Goertz was both a unit owner and a developer in a Saskatchewan condominium project governed by The Owners of Condominium Plan No. 98SA12401 (the Condo Corporation). A long-running dispute developed between him and the Condo Corporation’s board over governance, financial obligations and enforcement of bylaws. The conflict escalated when the Condo Corporation suspended Mr. Goertz’s right to vote at its annual general meeting because he had allegedly failed to pay outstanding amounts owed to the corporation. In response, Mr. Goertz commenced an originating application in the Court of King’s Bench, challenging the Condo Corporation’s conduct and its bylaws and seeking wide-ranging relief.
In that first application (often referred to as Goertz #1), he asked for declarations that certain bylaws were ultra vires; production of board documents; orders that he be allowed to attend and vote at annual general meetings; relief from alleged oppression under s. 99.2 of The Condominium Property Act, 1993; directions that the board comply with the statute and not enact bylaws contrary to it; and the appointment of an administrator under s. 101 of the Act. The dispute thus blended condominium governance issues with statutory remedies aimed at protecting owners from abusive board conduct.

The first decision (Goertz #1) and its appeal

A Chambers judge of the Court of King’s Bench dismissed all aspects of Mr. Goertz’s originating application. The judge concluded that the bylaws were not shown to be ultra vires, that the relief sought under the Condominium Property Act was not justified, and that the corporate governance decisions under challenge did not warrant court intervention. As part of that decision, the judge awarded the Condo Corporation solicitor-client costs “of the proceedings […] against Goertz, on a solicitor-client basis, to be taxed,” expressly relying on the corporation’s bylaws to justify this elevated costs order.
Mr. Goertz appealed both the substantive dismissal of his application and the solicitor-client costs award to the Saskatchewan Court of Appeal. In that earlier appeal (Goertz SKCA), the Court of Appeal dismissed his case in its entirety, upholding both the rejection of his claims and the award of solicitor-client costs to the Condo Corporation. Leave to appeal to the Supreme Court of Canada was later denied. As a result, a final judgment existed confirming that the Condo Corporation was entitled to solicitor-client costs, with only the actual dollar amount left to be assessed or taxed.

The second round: costs assessment and insurance/subrogation arguments

Years later, the Condo Corporation brought a new application under Rule 11-20 of The King’s Bench Rules seeking to have its costs from Goertz #1 assessed on a solicitor-client basis, including costs of the assessment application itself. At this point the fight shifted from the merits of the condominium dispute to the mechanics of enforcing the costs award.
At the assessment stage, Mr. Goertz did not argue about the reasonableness or quantum of the legal fees claimed. Instead, he tried to block enforcement entirely by invoking the Condo Corporation’s liability insurance policy. He asserted that he was an insured under that policy and therefore entitled to be indemnified for the costs award; that the policy contained a waiver of subrogation protecting him as an owner; that any subrogated claim by the insurer was statute-barred because the proper procedural route had not been taken; and that, in any event, the Condo Corporation had already been fully indemnified by its insurer, so any further assessment and recovery of costs would amount to a prohibited double recovery. To support these positions, he filed an affidavit exhibiting the policy wording, riders and correspondence with the Condo Corporation’s counsel.

Policy terms and the alleged insured status of the unit owner

Central to this second-stage dispute was the proper interpretation of the Condo Corporation’s liability insurance policy. The Chambers judge in the second proceeding (Goertz #2) began by analyzing whether Mr. Goertz qualified as an “insured” for the purposes of the claim at issue. The policy provided certain coverages to unit owners, but the judge interpreted it as insuring owners only for liability arising out of “common property,” not for disputes arising from their own use or occupation of individual units or for intentional litigation they initiated against the corporation. On the facts, the proceedings that Mr. Goertz himself had commenced against the Condo Corporation were characterized as his intentional act, and not as a risk for which he enjoyed coverage.
On this reading, the policy did not treat “common property” as extending to “everything in any way connected to the Condo Corp., including its governing bylaws.” The judge concluded that the dispute over bylaws, voting rights and governance fell outside the scope of the unit-owner coverage, and that Mr. Goertz therefore was not an insured in relation to the loss or liability represented by the costs award made against him. Because he was not an insured for this risk, the insurer’s payment of defence costs to the Condo Corporation could not be treated as payments made on his behalf.

Subrogation rights, waiver and double recovery

The Chambers judge also examined the insurance law issues raised by Mr. Goertz’s defence to the assessment. On the evidence, he found that the insurer had not waived its subrogation rights against Mr. Goertz. Thus, to the extent the insurer had indemnified the Condo Corporation for solicitor-client defence costs, it retained the right, in principle, to pursue recovery from a responsible third party for whom it provided no coverage.
The judge further held that the Condo Corporation’s application to assess costs was a proper procedural vehicle to give effect to that subrogation right. It was not necessary for the insurer to commence a separate action in its own name or in the Condo Corporation’s name as a distinct subrogated proceeding. The assessment of solicitor-client costs, combined with the obligation of the Condo Corporation to account to its insurer, was sufficient to prevent double recovery: the condominium corporation would not keep both the insurer’s indemnity and the amount recovered from Mr. Goertz but would instead satisfy its obligation to the insurer.
Accordingly, the judge rejected the contention that assessment of the previously ordered solicitor-client costs would constitute double recovery. The insurer’s payments were a matter strictly between insurer and insured, and they did not undermine the Condo Corporation’s entitlement to claim its costs from Mr. Goertz pursuant to the existing costs order and the bylaws that supported it.

The functus officio issue and the second Chambers decision (Goertz #2)

In Goertz #2, the Chambers judge expressly recognized that he was functus officio with respect to the original decision in Goertz #1 awarding solicitor-client costs; in other words, the merits of whether costs should be payable, on what scale, and by whom had already been finally decided, subject only to taxation. He nonetheless concluded that he could deal with “new issues” concerning insurance subrogation rights and then went on to dismiss all of Mr. Goertz’s arguments on subrogation, waiver and double recovery.
From the perspective of outcome, Goertz #2 confirmed that the costs award in favour of the Condo Corporation remained enforceable and that the assessment process should proceed. The judge held that Mr. Goertz was not an insured under the policy for this risk, that there was no binding waiver of subrogation protecting him, that the insurer was properly asserting subrogation through the assessment mechanism, and that no impermissible double recovery would result because the Condo Corporation must account to its insurer for any recovery from him.

The 2026 Court of Appeal decision: functus officio and the limits of re-litigating costs

Mr. Goertz obtained leave to appeal the second Chambers decision to the Saskatchewan Court of Appeal. On appeal he largely repeated the same arguments advanced at the assessment stage, maintaining that any costs claim against him was barred because the Condo Corporation had already been indemnified; that he was a co-insured under the policy and, even if not, the rule against double recovery prevented further enforcement; and that subrogation doctrine was being misapplied. He also raised new interpretive arguments about the policy, questioning whether the duty to defend should ever have been triggered and whether the bylaws could support a solicitor-client costs award without some form of assignment of rights to the insurer.
The Condo Corporation answered that the substantive findings of the Chambers judge disclosed no reversible error. Its primary position, however, was that the Chambers judge had lacked jurisdiction to hear any of these insurance and double-recovery arguments at all, because he was functus officio on the issue of entitlement to costs. On this view, the only matter that could properly be addressed at the assessment stage was quantum, i.e., the reasonableness and amount of solicitor-client costs. Since Mr. Goertz had not challenged the dollar figures but instead sought to attack his liability for costs and the Condo Corporation’s entitlement to them, the arguments were said to be outside the proper scope of the assessment and to amount to a collateral attack on the final judgment in Goertz #1.
The Court of Appeal agreed with the Condo Corporation. It held that the doctrine of functus officio applied squarely. The original Chambers judge in Goertz #1 had already determined that the Condo Corporation was entitled to solicitor-client costs against Mr. Goertz, and this decision had been affirmed on appeal. Once a final order on liability for and entitlement to costs is made and entered, the trial-level judge has performed his or her office and cannot reopen that determination, save for very narrow exceptions such as correcting clerical errors, exercising a specific statutory power or addressing circumstances amounting to fraud or miscarriage of justice. None of those limited exceptions applied.
The Court emphasized that, at the assessment, Mr. Goertz was not asking that costs be assessed in a certain amount or even assessed at zero on traditional taxation grounds. Instead, he sought to prevent any assessment from occurring, insisting that insurance, subrogation and double recovery rules eliminated his liability altogether and rendered the question of quantum “completely irrelevant.” That approach, the Court held, was an impermissible attempt to relitigate the Condo Corporation’s entitlement to costs—an issue conclusively resolved in Goertz #1 and Goertz SKCA. The doctrine of functus officio exists precisely to avoid this kind of “never closing revolving door” in litigation, where parties continue to revisit matters already finally decided.
For completeness, the Court of Appeal also addressed the merits of the insurance and subrogation issues in brief. It found no palpable and overriding error in the Chambers judge’s factual conclusion that Mr. Goertz was not an insured under the policy for the risk in question, no error in the finding that there had been no waiver of subrogation against him, and no misapplication of subrogation or double-recovery principles. It declined to entertain new arguments that had not been raised below, noting the constraints on raising fresh issues on appeal and observing that these new theories would not, in any event, undermine the Chambers judge’s core reasoning.

Final outcome and costs

Ultimately, the 2026 Court of Appeal decision dismissed Mr. Goertz’s appeal in its entirety. It confirmed that the Chambers judge was functus officio with respect to the original award of solicitor-client costs in Goertz #1 and therefore had no jurisdiction to revisit entitlement or liability for those costs at the assessment stage. It further held that, even if the functus officio doctrine did not apply, the Chambers judge’s conclusions on insurance coverage, subrogation and double recovery were sound and disclosed no reversible error. As a result, the Condo Corporation’s entitlement to have its solicitor-client costs assessed and recovered from Mr. Goertz remained intact. In its own disposition, the Court of Appeal ordered that Mr. Goertz pay the costs of the appeal to The Owners of Condominium Plan No. 98SA12401 on a solicitor-client basis pursuant to the bylaws, thereby confirming the Condo Corporation as the successful party in this final round of litigation. The decisions themselves, however, do not specify the final dollar figures for either the solicitor-client costs ordered in the earlier proceedings or the costs of this appeal, so the total monetary amount ultimately awarded in favour of the Condo Corporation cannot be determined from the available texts.