3.37: Application for judgment against defendant noted in default
9.15: Setting aside, varying and discharging judgments and orders
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiffs brought a claim against the Defendants regarding a home renovation project. The Defendants filed Statements of Defence; however, they failed to serve the Plaintiffs with Affidavits of Records and the Defences were struck. The Plaintiffs applied for Summary Judgment against the Defendants under Rule 3.37 and were granted general and special damages. The Defendants subsequently brought an Application under Rule 9.15 to set aside the Noting in Default and the Judgment. The Court set aside the Default Judgment and awarded the Plaintiffs thrown away Costs, finding that the Defendants were Noted in Default due to a "calamity of errors" by their Counsel.

The parties brought this Application before Justice Greckol to determine whether the Order for thrown away Costs ought to include Costs for the successful Application to open up the Default Judgment. The Court considered Koppe v Garneau Lofts Inc, 2005 ABQB 727 (CanLII), as an exhaustive source on the principles to be applied when an Order for thrown away Costs is issued. From that decision, Justice Greckol drew a distinction between:

a) the costs of the wasted work caused by the procedural misstep that is the source of the problem, and

b)  litigating the dispute over whether the person who took the misstep has the right to fix it.

In this case, the Plaintiffs were not entitled to Costs, because the Defendants were successful in their Application and the Plaintiffs could have relented prior to the Application being heard. Justice Greckol held that Costs for the Application were payable to the Defendants according to Schedule C, but not on a solicitor-client basis, as there was no principled reason to indemnify a litigant for legal Costs before a final decision on success was made.

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