The Intervenor in the original Judicial Review, the Attorney General of Canada, sought costs arising from its participation. The Intervenor sought triple costs for all steps of the Judicial Review on Column 1 of Schedule C.

Rule 10.31 contemplates a costs award issued at the conclusion of a matter and Rule 10.33 sets out factors that the Court may consider. The Court noted that, pursuant to Rule 10.29, the successful party is generally entitled to costs and that the Court has discretion over costs.

The Applicant cited the proposition that Intervenors are generally not entitled to costs. The Court considered the factors in Lynnview Ridge Residents' Action Committee v Imperial Oil Limited, 2005 ABCA 375, for the circumstances under which an Intervenor with a special interest should be awarded costs. These factors are:

1.                  Has the Intervenor contributed to the Court's deliberations by adding a viewpoint that otherwise would not have been considered or did the parties present the same point of view?

2.                  Is there legislation relevant to the case to suggest whether the Intervenor has a special interest or important role to play?

3.                  What is the nature of the Intervenor's special interest? The interest may be financial, proprietary, non-pecuniary or other.

The Court noted that the original Respondent did not participate in the Judicial Review making the Intervenor's participation essential to present fulsome argument.

The Court also found that the Attorney General of Canada had a special role in defending Canada's legislation. The third Lynnview factor had no real application in the present case.

In the present case, Justice Rothwell determined it was appropriate for the Intervenor to seek costs. The Intervenor was essential and helpful. His Lordship decided that the Intervenor's ability to seek costs fell within the "rights and duties of a party".

The Court noted that there is discretion to depart from the normal costs rule when a case is of public interest. In addition to the typical Court considerations in making a costs award as laid out in Rule 10.33, Rothwell J considered several factors specific to the facts of the matter, and ultimately decided that the present case involved some of the hallmarks of public interest litigation and it was appropriate to moderate the costs award, though not triple costs as sought by the Intervenor.