6.22: Obtaining evidence outside Alberta
10.32: Costs in class proceeding
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

In an estate litigation matter, the parties returned for a determination of Costs following the dismissal of the Defendant’s Application to question a non-party pursuant to Rule 6.22. Justice Mahoney stated that the Application was dismissed because the Questioning sought by the Defendants would be “a fishing expedition extraordinaire and an injustice.” Counsel for the Plaintiff proposed a Bill of Costs which was four times Schedule C, totalling $40,804.32.

Mahoney J. noted that the parties agreed that the successful party is usually entitled to costs, and that the Court has broad discretion to determine the amount. Justice Mahoney, quoting prior leading authority, held that the Court’s “discretion must be exercised judicially in accordance with the established principles”.

Counsel for the Plaintiff drew the Court’s attention to the fact that he had written to the Defendant’s counsel proposing a Bill of Costs which included the standard Schedule C amounts for all items except one, totalling $16,346.35, and advised the Defendant’s counsel that they would be seeking higher Costs if a Costs hearing was required. When counsel for the Defendant failed to respond, the Plaintiff increased the amount claimed to $40,804.32 (representing four times the Schedule C amount for all cost items).

Justice Mahoney noted that a lot of work was performed by the Plaintiff’s counsel, at significant cost, and ultimately ordered Costs under Schedule C totalling $19,000, in addition to disbursements.

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