picard, veldhuis and bROWN JJA

10.33: Court considerations in making costs award
14.88: Cost awards

Case Summary

The Court of Appeal allowed an Appeal, in part, from the Decision of a Chambers Judge which had found the Alberta Union of Public Employees (AUPE) in contempt and imposed certain obligations respecting, and restrictions upon, AUPE’s communications to its members regarding their legal strike. The Chambers Judge had also awarded solicitor-client Costs against AUPE.

While the Chambers Judge’s finding of contempt was affirmed, the Court of Appeal held that certain portions of the Order limited AUPE’s freedom of expression in a manner that could not be justified under Section 1 of the Charter of Rights and Freedoms. AUPE sought an Order that the Respondent, the Government of the Province of Alberta (Alberta), repay one-half of the solicitor-client Costs that had originally been awarded to Alberta by the Chambers Judge, and that each party bear its own Costs of the Appeal. AUPE referred to Rule 10.33 and submitted that the importance of the values underlying the Charter in general, and the right to free expression in particular, justified a departure from the usual rule that Costs follow the event.

The Court of Appeal noted that the discretion rests with the courts to apportion Costs on an issue-by-issue basis, but the Court declined to exercise that discretion. The Court agreed with the lower Court’s conclusion that solicitor-client Costs were appropriate. As to the Costs on Appeal, the Court referred to Rule 14.88(3), which provides that, unless otherwise ordered, the scale of Costs in an Appeal shall be the same as the scale that applies to the Order or Judgment appealed from. The presumption is that where solicitor-client Costs were warranted below, solicitor-client Costs should also be imposed on Appeal, unless the Court states otherwise. There was nothing in the history of the proceedings to warrant departing from that presumption.

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