Following the dismissal of the Elder Advocates of Alberta Society’s class action suit against Alberta Health Services (“AHS”), AHS appealed the Trial Judge’s “no Costs” Award.

The Court noted that Rule 10.29 enshrines the general principle that the successful party to litigation is presumptively entitled to Costs. However, when a class proceeding is involved, Costs must also be determined in light of Rule 10.32, which requires an assessment of: (a) the public interest; (b) whether the Action involved a novel point of law; (c) whether the proceeding or Action was a test case; and (d) access to justice considerations.

AHS argued that the Trial Judge’s Decision to award no Costs was based too heavily on the factors in Rule 10.32, without considering the criteria in Rule 10.33. Furthermore, AHS’ position was that Rule 10.32 allows the Court to consider “any other factors the Court considers appropriate”, which permits an assessment of the ordinary Costs factors in Rule 10.33. The Court responded that while these two Rules are not “mutually exclusive”, both involve the exercise of discretion in determining which factors are most appropriately relied upon in making a Costs Order.

The Court addressed Rule 10.32 and found that the matter involved vulnerable, disadvantaged members of society, and raised issues of societal importance which transcended the interests of an individual litigant, militating in favour of a no Costs Award. The Court also noted that the litigation raised a novel point of law, as it involved the statutory interpretation of whether an increased accommodation charge for elderly residents of long term care homes was legislatively and constitutionally valid. The complexity and difficulty of these legal issues merited a no Costs Award, despite AHS’ success. The Court also ruled that access to justice concerns were engaged, as the class of Plaintiffs was comprised of disadvantaged elderly people whose individual best case outcome in the litigation was so financially marginal that a no Costs Award was justified.

Finally, the Court addressed AHS’ argument that the litigation conduct of the parties should impact the ruling on Costs pursuant to Rule 10.33. The Court addressed the foundational principles in Rule 1.2 and the overlap between litigation conduct’s effect on Costs pursuant to Rule 10.33. The Court concluded that the Trial Judge provided no meaningful explanation of how AHS’ litigation conduct would substantiate or discredit a no Costs award. Accordingly, the Appeal was dismissed.