This was a Costs Decision arising from a successful Summary Dismissal Application by one of several Defendants.

The Applicant sought 50% of its actual Costs (a total of approximately $250,000) based on the Decision in McAllister v. Calgary (City), 2021 ABCA 25 (“McAllister”). The Respondents objected to that scale of Costs, asserted that Costs should be payable at the conclusion of the entire lawsuit, or sought contribution or indemnity from the unsuccessful Defendants.

The Court observed that McAllister did not supplant Schedule C of the Rules with a de facto­ 40–50% indemnity model. Rather, per the Court, McAllister is simply a reminder of the variety of choices in awarding Costs, depending on the circumstances of a given case and the considerations under Rules 10.33 and 10.2 (with respect to scale) and Rule 10.31 (with respect to options). The Court emphasized that Costs remain wholly discretionary.

With respect to this particular case, Applications Judge Schlosser observed that the Applicant’s ultimate argument on the Summary Dismissal Application was available at the outset of the lawsuit in 2012. The Court did not impugn the Applicant for taking a cautious approach, but found it inappropriate to require the Respondent to pay the expenses related to that approach.

In the result, the Court awarded the Applicant Costs under Schedule C, payable forthwith.