The Applicant Defendants applied for Costs after being successful at a Summary Dismissal Application. At the Summary Dismissal Application, Mandziuk J granted enhanced Costs.

At the Summary Dismissal Application, it was clear that the Applicants were not appropriate parties to the Action. The Action was an attack on the constitutionality of a bylaw. The Defendant Applicants were the county subdivision and development appeal board and the municipal planning commission. The Court noted that when they make their decisions, they must presume the validity of the bylaws that are operational at the time. While the Court found that enhanced costs were justified during the Summary Dismissal decision, the Court did not conclude that the conduct of the Plaintiff Respondents attracted solicitor-client costs.

The Defendant Applicants sought 75% of their Costs as an appropriate measure of enhanced Costs. The Plaintiff Respondents argued that Schedule C costs would be appropriate.

Rule 10.29 states that successful parties are entitled to costs against unsuccessful parties, “notwithstanding the final determination of the application, proceeding or action”. The general rule in Rule 10.31 is that the Court has broad discretion to make a Costs award that it considers appropriate after considering the factors in Rule 10.33. The general discretion in Rule 10.31 can be read in conjunction with Rule 1.2(4) which provides a framework for the Court’s application of the Rules.

There are three primary types of Costs awards. Solicitor and own client (full indemnity); solicitor-client (substantial indemnity); and party-party costs (partial indemnity). Party-party Costs are the usual Costs awarded pursuant to Schedule C. Schedule C allows courts to award Costs quickly and efficiently, however, Schedule C does not automatically apply unless the Judge chooses to utilize it. The presumption that Column 1 of Schedule C applies where a non-monetary remedy is sought is rebutted where the Court orders enhanced costs.

The weight of Alberta authority is that party-party costs should partially indemnify the successful party for 40-50% of their actual costs in cases where no wrongdoing is alleged.

Enhanced Costs can be awarded where the conduct of one of the parties falls short of what is expected from a responsible litigant but does not represent the sort of egregious behaviour that attracts full indemnity Costs.

The parties conceded that the Court had awarded enhanced Costs at the Summary Dismissal Decision. On the facts, the Court found that an appropriate quantum for Costs would be for the Plaintiff Respondents to pay 65% of assessed solicitor-client costs, plus reasonable disbursements and GST.