GILES (RE) , 2023 ABCA 242


14.73: Procedural powers

Case Summary

This Costs Decision arose from an Appeal concerning interpretation of a testamentary spousal trust. The Chambers Judge found that the Respondents were entitled to information about the beneficiary’s financial situation. The Appellant challenged the Chambers Judge’s Decision and the subsequent Costs Award. 

The Respondents took the position that the Appellant did not amend his Notice of Appeal to include an Appeal of the Costs Award and that therefore the Decision was not properly before the Court. The Court considered Rule 14.73 regarding Court’s procedural powers stating that the Court has the authority to cure this irregularity if needed. The Court stated that the Respondents had the notice of the Costs Appeal which formed the Appellant’s Factum, and had an opportunity to present their arguments in response. The Respondents submitted that if the Costs Appeal was permitted to proceed, then the Chambers Judge’s Decision was reasonable. The Appellant submitted that there was mixed success and that the Costs Award should reflect the divided success.

The Court of Appeal referred to McAllister v Calgary (City), 2021 ABCA 25 noting that Cost Awards are discretionary, and the Chambers Judge made findings of fact given in the context of an exercise of discretion. The Court considered the Chambers Judge’s finding that the Respondents succeeded on almost all grounds and that the Court’s Decision is therefore entitled to deference. The Court of Appeal recognized that there was some double counting in the Costs Award and therefore reduced the Costs by $16,141.26. The overall Appeal was dismissed.

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