10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision arising from an Application for an interim Injunction to sequester some funds pending adjudication of a breach of contract Action. The Court considered Rules 10.29 and 10.31 regarding the ability of the Court to use its discretion to award Costs to the successful Party, considering factors under Rule 10.33, which include, among a list of factors, result, complexity, and whether an Application was unnecessary or improper.

The Defendant sought 50% of actual indemnity Costs as the successful Party as per the scale set out by the Court of Appeal in McAllister v Calgary (City), 2021 ABCA 25 (“McAllister”) and GG & HH Inc. v 2306084 Alberta Ltd., 2022 ABKB 834 (“GG & HH”). The Plaintiff submitted that Costs for this Application should be in the cause, as the Defendant did not refute bad faith allegations, and since such allegations remain live it should be the final decision-maker (Trial Judge or Applications Judge at Summary Judgment) who determines all the Costs. Alternatively, the Plaintiff argued that the Costs should be on Column 3 of Schedule C, given that the amount at stake was $300,000 and the matter was not so complex so as to attract McAllister-scale Costs.

The Court concluded that the McAllister approach as applied in GG & HH applied and directed the Plaintiff to pay 40% of the Defendant’s Costs of the Application. Justice Mah noted that the Plaintiff’s Application was unnecessary as it was really in no different a position than that of any Plaintiff who sues a Defendant for a money Judgment. Justice Mah also clarified that the bad faith allegations remain live issues to be adjudicated, however the Plaintiff cannot rely on the Defendants conduct as a reason for denial of Costs, when that conduct has not yet been proven.

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