10.33: Court considerations in making costs award
13.6: Pleadings: general requirements
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

This Decision dealt with the parties’ entitlement to Costs after the Trial of the Action.

The Plaintiff had originally claimed against Enterprise Rent-a-Car Canada Limited (“Enterprise”) and the Calgary Police Service (“CPS”), but later discontinued his Action against CPS on a without Costs basis. Thereafter, Enterprise obtained a Consent Order permitting it to serve a Third Party Notice on CPS. After two weeks of Trial, the Plaintiff and Enterprise reached a settlement. Thereafter, the Court found that CPS was not liable to the Plaintiff or Enterprise.

In its ruling on Costs, the Court first addressed the question of what Costs column in Schedule C applied for determining CPS’s Costs. The parties could not agree as to the applicable Costs column because the Plaintiff had claimed for general damages in the amount of $200,000, and pecuniary and special damages without quantifying them. Justice Renke commented that the Plaintiff’s pleadings may have been deficient, as they did not contain an estimate of the amount to be claimed as required by Rule 13.6(2)(c)(ii). Later, while at Trial, Enterprise has valued the Plaintiff’s claim at $1.5 million or $1.7 million; and then in its closing submissions, had stated it was seeking contribution of $303,750 based on its share of the settlement amount. Justice Renke considered Rule 10.33(1) and noted that the Rule “refers to the amount claimed [in the pleadings] and the amount recovered as matters that may be considered in a costs award.” His Lordship also highlighted two objectives of a tariff of fees (Schedule C, Division 2): (1) to provide certainty to parties; and (2) to promote parity or fairness for litigants through similar treatment. The Court found that Column 3 of Schedule C was the appropriate one for determining CPS’s Costs, as both the Plaintiff’s pleadings and the settlement amounts fell under Column 3. 

Justice Renke next considered whether Enterprise should pay all of CPS’s Costs, or only those Costs incurred after it served its Third Party Notice on CPS. The Court found that there was nothing that disentitled CPS to Costs from the beginning of litigation.

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