1.2: Purpose and intention of these rules
4.29: Costs consequences of formal offer to settle
5.12: Penalty for not serving affidavit of records

Case Summary

This was a costs decision after Jones J allowed an Appeal of a Master’s Decision where Clearbakk Energy Services Inc. (“Clearbakk”) obtained Summary Judgment against Sunshine Oilsands Ltd. (“Sunshine”).

Jones J noted that the result of the Court allowing the Appeal of the Summary Judgment is that the matter will go to Trial. The Justice who hears the Trial will be in a better position than Jones J to assess costs for the totality of the Action. Jones J accordingly limited the scope of the costs award to the issues of a Security for Costs Application related to the Appeal, the Summary Judgment Appeal itself, and this Application for costs.

The Court noted that Sunshine was the successful party for the matters before Jones J and should be awarded costs.

Sunshine sought enhanced Costs against Clearbakk citing alleged litigation misconduct. Clearbakk had sought solicitor and own client costs against Sunshine by alleging that Sunshine had breached Rule 1.2 and alleging that Sunshine had failed to file a responding Affidavit for the Summary Judgment Application, notwithstanding that it was not required under Alberta law. The Court was not prepared to make any finding in respect of alleged litigation misconduct on the part of Clearbakk and left this matter for Trial.

Sunshine sought a penalty against Clearbakk pursuant to Rule 5.12 arising from Clearbakk’s failure to file its Affidavit of Records within the stipulated time. Clearbakk argued that the Master who Ordered the half-day Special Application for Summary Judgment had suspended the requirement for an Affidavit of Records. The Court agreed.

Sunshine also asserted that there were genuine offers to settle in the form of a Formal Offer and two Calderbank Offers. Sunshine claimed it was entitled to double costs following the offers pursuant to Rule 4.29. Clearbakk argued that because Sunshine’s offers were issued prior to the Summary Judgment Appeal, and not renewed thereafter, that they cannot be considered in assessment of costs relating to the Appeal. Jones J agreed. The Court found that it was more appropriate for the Trial Justice to address any costs consequences of the alleged offers.

The Court awarded Sunshine costs against Clearbakk in accordance with Schedule C of the Rules in respect of the Security for Costs Application, the Summary Judgment Application, and the current costs submission before the Court.

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