Federated Co-operatives Limited (“Federated Co-operatives”) appealed a portion of a Partial Summary Judgment in favour of Calgary Co-operatives Association Limited (“Calgary Co-op”), which was dismissed by the Court of Appeal in a separate but related decision (the “Partial Summary Judgment Appeal”). This decision was in respect of the Costs arising from the Partial Summary Judgment Appeal. The Parties agreed that Costs were payable to Calgary Co-op but could not agree on the amount.

Calgary Co-op sought 50% of its solicitor and client Appeal Costs or, alternatively, a lump sum amount of $90,000. Federated Co-operatives submitted that Rule 14.88(2) applied, and that there was no reason to deviate from the standard Appeal Costs set out in schedule C or, alternatively, that the percentage awarded at first instance should apply, which they calculated to be 28%. The Court rejected this argument, citing inconsistencies with previous arguments advanced by Federated Co-operatives, and actually found that percentage awarded at first instance was approximately 36.2%.

The Court found that the appropriate Costs Award for the Appeal was $90,000, inclusive of disbursements, plus GST. In arriving at its conclusion, the Court stated that where a Trial Judge awards Costs in a lump sum, Rule 14.88 is difficult to apply, as an appropriate percentage of solicitor and client costs at Trial may not be appropriate on appeal. Further, the Court cited case law for the principle that Costs Awards based on a percentage of solicitor and client costs must be justified beyond merely asserting the quantum charged to or paid by the client. The Court also considered Rule 10.33, taking into consideration the scale of Costs awarded by the Trial Judge and the Costs award for the Appeal that would be generated by the strict application of Schedule C.