GOODSWIMMER v CANADA (ATTORNEY GENERAL), 2023 ABCA 247
14.5: Appeals only with permission
The Plaintiff Applicant applied for permission to Appeal the Costs awarded to the Respondents. The underlying Costs Decision awarded Costs to Alberta (the “Alberta Respondent”) and only a portion of the Costs awarded to Canada (the “Canada Respondent”). The Plaintiff had been ordered to pay all of the Alberta Respondent’s Costs, whereas the Plaintiff’s lawyers had been ordered to pay a portion of the Canada Respondent’s Costs, personally. The Court noted that Rule 14.5(1)(e) was applicable and that for permission to be granted: (1) the Applicant must identify a good, arguable case having enough merit to warrant scrutiny by the Court; (2) the issues must be important, both to the parties and in general; (3) the Appeal must have some practical utility (4) the Court should consider the effect of delay in proceedings caused by the appeal (together the “Permission to Appeal Test”).
The Applicant submitted that it was unreasonable for the Chambers Judge not to apportion some of the Costs awarded to the Alberta Respondent against its former lawyers in the same away the Court had with the Canada Respondent because the Costs awarded to the Alberta Respondent related to the same proceedings involving the same “serious misconduct”.
The Court denied the Application for permission to Appeal and found that the first element of the Permission to Appeal Test had not been satisfied. The Court specifically noted that: it was within the Alberta Respondent’s discretion to approach the question of Costs differently than the Canada Respondent; there was no Application or Cross-Application requesting that Costs awarded to the Alberta Respondent be apportioned as between the Respondents and their lawyers, instead apportionment of the Alberta Respondent’s Costs was raised with the Chambers Judge for the first time by the Applicants in their response Brief; there was no Application asking that any part of the Alberta Respondent’s Costs be awarded against the lawyers; and no realistic opportunity for all affected parties to respond to the Applicant’s
The Court found that the second element of the Permission to Appeal Test had not been satisfied, noting that the proposed Appeal involved the application of settled principles to unique facts and was therefore not also of general importance.View CanLII Details