GG v HH INC, 2022 ABKB 834


10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

Justice Eamon issued a Costs Endorsement related to two Applications. In the first Application, the Plaintiffs had previously obtained an interim injunction from Devlin J. In the second Application, Eamon J. set it aside in favour of the Defendants.

Justice Eamon noted that subject to the Court’s discretion under Rule 10.31, a successful Party to an Application is entitled to a Costs Award against the unsuccessful Party. The purpose of Rule 10.31 is to ensure that the quantum of a Costs Award is reasonable and proper. As such, Rule 10.31 invites the Court to consider the matters described in Rule 10.33, including the complexity of the Action, the importance of the issues between the Parties, the conduct of a Party that shortened the Action, the degree of success of a Party, and apportionment of liability. Further, the Court may determine a reasonable and proper quantum based on any matters it considers relevant. Justice Eamon also noted that the Court may order Costs under Rule 10.31 to be payable with or without reference to the Schedule C tariff, on a multiple or fraction of the Schedule C tariff, on a percentage of assessed Costs, or in full or in part with respect to a particular issue or Application in a proceeding.

The Defendants sought enhanced Costs, being 70% of their solicitor and clients Costs. The Plaintiffs argued that the Defendants acted unreasonably and made unsubstantiated accusations, which should disentitle them from Costs. Furter, any Costs should be assessed by an Assessment Officer.

The Court noted that the interim injunction Application was “hotly contested”. The Parties had lengthy and conflicting evidence. The complexity of the matter required the Parties to spend substantial effort to test the evidence. The Parties “went to great lengths to demonstrate the other had no credibility, should not be believed, or was guilty of bad motivations or intentions or bad conduct”. Accordingly, a Costs Award based on the Schedule “C” tariff would be inadequate.

Justice Eamon found that an award of solicitor and Client Costs in favour of the Defendants was reasonable in the circumstances, but should not exceed 40%. This was in line with the Court of Appeal’s decision in McAllister v Calgary (City), 2021 ABCA 25 which held that a partial indemnity of 40-50% of solicitor and client Costs is a reasonable target. Enhanced Costs were not appropriate on the facts. The Defendants did not receive Costs for steps taken that were unnecessary, led to inadmissible evidence, or in which they were substantially unsuccessful.

The Parties were directed to apply to the Assessment Officer if they disagreed on their respective solicitor and client accounts.

View CanLII Details