AVLI BRC DEVELOPMENTS INC v BMP CONSTRUCTION MANAGEMENT LTD, 2023 ABKB 267
SLATTER, HUGHES AND KIRKER JJA
4.29: Costs consequences of formal offer to settle
14.59: Formal offers to settle
14.88: Cost awards
The Alberta Court of Appeal had previously dismissed the Appellant’s Appeal and held that the Respondents, as the successful party, were presumptively entitled to Costs. Two of the Respondents later sought enhanced Costs under Rule 14.88.
The first Respondent argued that it was entitled to double Schedule C Costs under Rules 4.29 and 14.59. Rule 4.29 entitles a party to double Costs including disbursements if that party makes a Formal Offer that is not accepted and the outcome of the proceedings is less favourable to the opposing party than the Formal Offer. Rule 14.59 states that when a Formal Offer is made for an Appeal, Costs of the Appeal must be awarded in accordance with Rule 4.29.
The Court awarded the first Respondent double Schedule C Costs. The Court noted that the four primary factors in whether double Costs are appropriate are the timing of the offer, the content of the offer, whether the offer was beyond de minimis, and whether special circumstances exist which militate against granting double Costs. The Court determined that all four factors weighed in favour of granting double Costs and noted that the Appellant did not argue otherwise despite being given an opportunity to respond.
The Court awarded the second Respondent Costs calculated on Column 2 of Schedule C. Although the second Respondent argued for enhanced Costs, it based its calculations on Column 1 of Schedule C, even though the Chambers Judge had awarded Costs based on Column 2. The Court found that there was no material difference between the enhanced Costs the second Respondent appeared to claim and the amount it was entitled to under Column 2 of Schedule C.View CanLII Details