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

Case Summary

This was a Costs Decision arising from an Application to strike and/or summarily dismiss claims over a Treaty Land Entitlement (TLE) Agreement. The Plaintiffs unsuccessfully appealed the Decision and then unsuccessfully sought leave to Appeal.

The Court considered Rules 10.33 and 10.31 regarding the ability of the Court to impose, deny or vary a Costs Award as well as the relevant jurisprudence regarding party and party Costs as representative of partial indemnification of actual Costs incurred, assuming no misconduct by either Party.

The Defendant, Alberta, sought costs on Column 5 on two of the proposed Bill of Costs whereas the Defendant, Canada, sought Column 5 on all of its Bill of Costs. The Plaintiff argued that Costs should be based on a Column less than Column 5, asserting that the primary relief sought in relation to land was declaratory relief and that the damages were related to other live claims in the Action, such as the destruction of wildlife, the destruction and conversion of natural resources, and interference with aboriginal rights to use land in traditional territory.

The Court concluded that some multiplier of Column 5 is justified simply on the basis of the amount of the claims as well as the other factors set out in Rule 10.33, including that the claims were related to breaches of fiduciary and constitutional duties; had the Plaintiffs been successful, a large damages award and significant awards of lands would have significant fiscal and budgetary effects; the ultimate decision was lengthy and dismissed many arguments of the Plaintiffs ranging from abuse of process, effect of a release and indemnity, limitation periods, and the duty to consult; there were unfounded allegations of misconduct; and there were unnecessary and improper steps and Applications.

View CanLII Details