The Court had previously denied the Plaintiff’s request to be granted public interest standing and granted the Defendant’s application to strike the Action. This Decision dealt with the Costs arising from those proceedings.

Justin Martin observed that, at common law, there were previously four factors that the Court would consider when deciding whether to depart from the ordinary rule that a successful party is entitled to Costs in the context of public interest litigation. These four factors were later codified under Rule 10.32: (1) the public interest; (2) whether the Action involved a novel point of law; (3) whether the proceeding or Action was a test case; and (4) considerations related to access to justice.

In addition to these factors, Justice Martin noted that Rule 10.33 provides a list of factors that the Court may consider in making a Costs Award and further factors to consider in deciding whether to deny or vary an amount of Costs. Justice Martin held that the two sets of factors (under Rules 10.32 and 10.33) may both be considered in accordance with their relevance to the matter at hand—they are not mutually exclusive.

Here, the Court found that, while the Plaintiff lacked public interest standing, its Action did bring substantial attention to the underlying issues related to the plight of unhoused Edmontonians and unhoused persons throughout Canada. The Court found that the Action did not raise a novel point of law, but that it was a form of test case related to the legality of the Defendant’s policy on dismantling encampments. With respect to access to justice, the Court recognized the difficulties unhoused persons face in bringing litigation forward and the importance of public interest litigation in addressing that difficulty.

In light of those factors, the Court awarded the Defendant $11,500 in Costs, which amounted to approximately half of the amount sought.