HOGARTH v ROCKY MOUNTAIN SLATE INC, 2013 ABCA 116
O'BRIEN, SLATER AND ROWBOTHAM JJA
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
The entire Trial Judgment against the Appellant was set aside on Appeal. The Appellant applied for Costs of the Trial and the Appeal. The Court held that the general rule is that the successful Party is entitled to Costs. The Appellant was successful in having the Action against him dismissed and, as such, the Costs award made at Trial against the Appellant was set aside. Moreover, the Sanderson Order made at Trial, which required the unsuccessful Defendants to indemnify the investors for Costs, was also set aside with respect to the Appellant.
Further, the Court held that the Appellant was entitled to receive Costs with respect to pre-Trial steps and Trial for the period in which he was represented by counsel. At some points during Trial the Appellant was jointly represented with two unsuccessful Defendants. The Court held that the Appellant was only entitled to one-third of the Costs otherwise payable during the period of joint representation. The Respondents argued that the Appellant should not be awarded Costs because there was no evidence that he had paid his Trial counsel. The Court rejected this argument and held that the Respondents could not avoid Costs because of the state of accounts between the Appellant and his counsel.
The Appellant argued that he should receive Trial Costs for the periods in which he was self-represented. Under the former Rules, there was a presumption that self-represented Parties were not entitled to Costs. However, the new Rules provide that Costs can be awarded to self-represented parties where appropriate. Costs are intended to partly indemnify the successful party for the expenses of litigation. Costs can be used to encourage settlement, prevent frivolous litigation, and encourage economy during litigation. Awarding Costs to self-represented litigants raises difficult policy issues and could have the effect of encouraging litigation and discouraging settlement. Unless a Costs award would serve one of the policy reasons for which such awards are made, a self-represented litigant should not receive Costs. In the circumstances, the Court held that the Appellant was not entitled to Costs during the period in which he was self-represented.
The Respondents argued that the Appellant should not receive the Costs of the Appeal because he was not successful on all of the arguments raised. The Court held that a litigant is unlikely to be successful on every issue. Arguing every issue reasonably raised on the record cannot disentitle a litigant to Costs. As such, the Court held that the Appellant was entitled to the Costs of the Appeal.View CanLII Details