KENT v KENT (ELLIS), 2011 ABQB 611


10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

In this Decision the issue before the Court was which party was entitled to Costs arising from the Action. The Plaintiff argued that he was entitled to Costs as a result of delays that the Defendant caused. Conversely, the Defendant argued that she was entitled to Costs because she was substantially the successful party.

With regard to the Defendant’s argument, the Court considered Rule 10.29(1) which provides that the successful party is entitled to Costs from the unsuccessful party. The Court noted that it is not necessary that the successful party succeed on every point, but that there must be “substantial success” which is assessed on a “balanced assessment of the outcome and the nature of the final judgment”.

The Court disagreed with the Defendant’s assessment that she was substantially the successful party and instead found that the Plaintiff was substantially successful on all major aspects of the Action.

The Defendant also sought increased compensation as a result of the Plaintiff’s conduct at Trial. The Court held that Rule 10.31(2)(c) provides that “reasonable and proper costs do not include costs related to dispute resolution or judicial dispute resolution processes unless a party engages in serious misconduct in the course of the resolution process”. The Court found that the Plaintiff did not engage in serious misconduct and accordingly the Defendant was not entitled to Costs on that basis.

The Court then considered the Plaintiff’s argument that he was entitled to Costs in addition to party-party Costs as a result of delays caused by the Defendant. The Court applied Rule 10.33(2)(a), which provides that in making a Costs Award the Court can consider whether the conduct of a party “unnecessarily lengthened or delayed the action or any stage or step of the action”. The Court agreed with the Plaintiff that the Defendant’s conduct resulted in a delay and that the Plaintiff was entitled to reasonable compensation for such a delay.

In assessing the quantum of Costs, the Court noted that Rule 10.31(1)(b) allows the Court to Award Costs in any amount that it considers appropriate in the circumstances. The Court also found that although the former Rules of Court designated Column 1 as the default column for divorce and corollary relief matters, the new Rules of Court do not provide that same limitation. However, some courts have continued to apply the procedure used under the former Rules of Court and limit Costs to Column 1. The Court in this case held that given the circumstances, it was appropriate to assess Costs under Column 4.

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