10.33: Court considerations in making costs award
14.5: Appeals only with permission

Case Summary

The parties, Antoine Alkadri (the “Applicant”) and Khaled Alkadri (the “Respondent”) were brothers who had started the company Tiles4Less (the “Company”). The brothers’ business relationship became contentious and the Respondent filed an oppression complaint pursuant to section 242 of the Business Corporations Act, RSA 2000, c B-9 (the “Act”) against the Company and the Applicant (the “Underlying Action”).

The Applicant sought permission to appeal an interlocutory Order (the “Order”) in which the Case Management Judge (“CMJ”) had ordered the Company to pay to the Respondent interim Costs to cover, among other things, legal fees and disbursements pursuant to section 243(4) of the Act (the “Appeal”). The Applicant argued, among other things, that the CMJ erred in exercising his discretion to award interim Costs by failing to consider the factors in Rules 10.33(2)(a) and (f). The Applicant submitted that the Respondent had delayed the Underlying Action thereby increasing the cost of the proceedings, and that this conduct should disentitle him to any assistance.

O’Ferrall J.A. found that pursuant to Rule 14.5(1)(e), an Applicant must receive permission to appeal a Decision as to Costs only. The Applicant must be able to demonstrate: (a) a good arguable case; (b) issues of importance to the parties and in general; (c) that the Appeal has practical utility; and (d) that no delay in proceedings will be caused by the Appeal.

Justice O’Ferrall noted that Costs awards are discretionary and are reviewable on the standard of palpable and overriding error. After reviewing the relevant factual history, His Lordship found, as did the CMJ, that the Respondent owned 40% of the Company and the Order was drafted to operate as a loan, secured by way of Consent Judgment in favour of the Company as against the Respondent. Accordingly, if the Respondent was to lose the Underlying Action, he would have to repay the loan. Justice O’Ferrall further found, as did the CMJ, that it appeared that some of the delay was due to the inaction of the Company and the Applicant. Accordingly, O’Ferrall J.A. dismissed the Applicants’ Application for permission to Appeal.

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