10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision following the Defendant, Canada, successfully appealing a Master’s Decision dismissing Canada’s Application for a stay of proceedings. Canada, as the successful party, sought Costs of $5,600.18. The Plaintiffs argued that there were special circumstances justifying a departure from the general rule that a successful party to an Application is entitled to Costs.

The Court considered the decision in Elder Advocates of Alberta Society v Alberta Health Services, 2021 ABCA 67, which noted that exceptions to the general rule can be made in appropriate cases. Rule 10.33 provides guidance on the factors to consider.

Bercov J. found that Canada’s conduct did not justify a departure from the general rule on Costs. Canada did not engage in misconduct, and Canada’s delay in bringing the stay Application did not impact the Costs of the stay Application or the Appeal. However, Bercov J. noted that the Court may consider other factors under Rule 10.33(1)(g), such as the novelty of the issue. Canada’s stay Application was novel enough to justify a departure from the general rule on Costs. There is a lack of jurisprudence in Alberta and throughout Canada regarding the appropriate test and factors to consider when determining whether to stay an individual Action when there are certified class actions involving the same subject matter of the individual Action. Bercov J. determined that there was merit to both parties’ positions and held that each party should bear their own Costs.

View CanLII Details