This was a costs decision in which the successful parties sought costs worth three times column five of Schedule C of the Rules and reasonable disbursements.

The unsuccessful party submitted that costs should be awarded in its favour due to its position being “truly exceptional public interest litigation”.

Rule 10.29(1) entitles a successful party to a costs award against the unsuccessful party. Rule 10.33 sets out a list of factors that the Court may consider in determining a Costs award. Here, the most important factors were: 1) the result of the Action; 2) the importance of the issues; and 3) the complexity of the case.

The Court found this was a complex case which involved some public interest but that it was not “exceptional.” As such, the case did not meet the test for an award of special costs for public interest ligation as laid out in Carter v Canada (AG), 2015 SCC 5. Therefore, the Court declined to award any costs to the unsuccessful party.

Ultimately, the Court awarded the successful party column five Schedule C costs noting that the facts did not warrant any multiplier.