9.35: Checking calculations: assessment of costs and corrections
10.26: Appeal to judge

Case Summary

The Plaintiff applied for a review of an Assessment Officer’s decision in respect of Costs in a foreclosure Action. The mortgage allowed for Costs on a full indemnity basis, and the Order which confirmed the Sale and Vesting of Title awarded Costs on a “solicitor and client basis”. The Bill of Costs sought recovery of both legal fees and disbursements and was accompanied by a copy of the proposed fee guideline generated by the Calgary Bar. The Assessment Officer stated that the proposed fee guideline was “a Calgary practice not followed by Edmonton” and awarded $4,500.00 in fees. The Plaintiff sought a review of this Assessment under Rule 9.35(4), filing a supporting Affidavit which acknowledged that the bill would be fully paid as rendered.

Master Schlosser stated that reviewing a Bill of Costs involves applying the ten principles as set out in Alberta Treasury Branches v 14010507 Alberta Ltd (Katch 22), 2013 ABQB 748 (CanLII), noting that the starting point is for the Courts to recognize and give full effect to the Order granting Costs, whether the Court’s review is based on Rule 10.26 or Rule 9.35(4). In most instances, the Order will mirror the lending document. Master Schlosser observed, however, that neither an Order nor lending document will shield a Costs Claim from review.

In this instance the lending document was more generous to the lender than were the terms of the Order. Master Schlosser held that, despite the Bill of Costs being outside of the usual range, there was nothing in the case at bar which would disqualify any of the steps taken by the Plaintiff’s solicitor nor their time spent. Master Schlosser observed that “it is the market which prevails not some abstract notion of what a hypothetical reasonable solicitor would bill a client for a routine foreclosure”. The Bill of Costs was allowed as submitted.

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