In a contested Estate matter, the Court issued a Decision in favour of the Plaintiff, and awarded Costs. Justice Yamauchi noted that the Rules which apply to Costs considerations in surrogate matters are Rules 10.29, 10.31 and 10.33, as well as Rule 64 of the Alberta Surrogate Rules, AR 130/95. Yamauchi J. observed that, historically, it was common practice in estate matters for the Court to award the Costs of all parties to be paid from the Estate. However, this is no longer the general approach in estate litigation, and Costs now follow the event unless the challenge to a Will was reasonable, or an exception could be justified on public policy grounds.

Citing recent authority, Justice Yamauchi noted that Courts will take a broader view of Costs following the basic principles that: Costs follow the event; Schedule C of the Rules is the usual measure of Costs; the Court has a wide discretion to award Costs in any matter; a successful party’s costs may be refused or reduced based on their conduct during the litigation; Costs on an elevated scale “are the exception and not the rule”; and an award of elevated Costs requires either that the magnitude of the award is “well more than $1.5 million” which is not reflected in Schedule C, or the elevated Costs are justified by misconduct by the unsuccessful party.

Yamauchi J. also considered the principles with respect to full indemnity Costs as set out in Jackson v Trimac Industries Ltd (1993), 1993 CanLII 7031 (AB QB), 138 AR 161, 8 Alta LR (3d) 403 (ABQB), and cited Daved v Daved, 2010 ABQB 696 (CanLII) with respect to the law as it relates to solicitor and client Costs for party misconduct. His Lordship noted, inter alia, that solicitor and client Costs are awarded where the conduct of a party has been reprehensible, scandalous or outrageous.

Justice Yamauchi ordered the Respondent to pay Costs on a full indemnity basis and to bear his own Costs which would not be reimbursed by the Estate. Rule 4.29 did not apply since Costs were awarded pursuant to Rule 10.31(1)(b).