10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award
14.88: Cost awards

Case Summary

The parties applied to the Court for direction regarding Costs following the failure of an Appeal by the Appellant, Canadian Centre for Bio-Ethical Reform. The successful Respondent, Grande Prairie (City), argued that it was entitled to Costs on the same scale as awarded at Trial pursuant to Rule 14.88, which states that a successful party on Appeal is entitled to Costs against an unsuccessful party unless otherwise ordered. The Respondent argued further that it should be entitled to Costs assessed on Columns 5 of Schedule C of the Rules because the Appeal raised issues of significant complexity and importance. Rule 10.33 outlines the factors that a Court may consider in making a Costs award, including the complexity of the Action. The Appellant argued that because no monetary sum was in issue, the presumptive Costs award is based on Column 1 of Schedule C. However, because of the public importance of the constitutional issues raised, no Costs should be awarded.

The Panel confirmed that a successful party in litigation is presumptively entitled to a Costs award pursuant to Rules 10.29 and 14.88. There can be an exception where the litigation has a public interest component or where access to justice is an issue; however, there is no blanket public interest exception to the general rule that the successful party is entitled to Costs. Further, the Panel stated that the financial wherewithal of a losing party is generally not a factor in determining Costs. A losing party can be exempted from paying Costs on the grounds of public interest but only where the party has no private interest in the Action. In this case, the Appellant had a definite private interest in the matters in issue – its right to advertise its cause in public.

In response to the Respondent’s arguments, the Panel found that the Appeal did raise issues that were complex, but they were not new or without precedent in jurisprudence. Furthermore, the complexity of the issues needs to be balanced against the public interest in resolving Canadian Charter of Rights and Freedom issues. The Panel closed by stating that a Costs award is discretionary and requires the Court to balance the competing interests of the parties. The Panel then ruled that Costs in this case would be awarded on the same scale as Trial, following the usual convention.

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