KENT v MACDONALD, 2021 ABQB 953
9.12: Correcting mistakes or errors
9.13: Re-opening case
9.2: Preparation of judgments and orders
10.30: When costs award may be made
The Applicants sought leave for Justice Loparco to revisit her trial decision on costs. At Trial, Justice Loparco found that the Applicants were 25% liable to the Respondents and awarded costs against the Applicants. On appeal, the Applicants were found not liable, and the Court of Appeal held that the Applicants would not be responsible for any portion of costs to the Respondents. Justice Loparco considered whether the Court was functus officio, and therefore unable to revisit the costs decision at Trial. The doctrine of functus officio allows finality of Judgments from Courts which are subject to appeal. This doctrine applies whether the Judgment relates to the Trial Decision or the related costs decision, unless an exception applies.
Justice Loparco held that she could not revisit her Trial Decision on costs because the Court was functus officio. Justice Loparco held that when the Order was entered pursuant to Rule 9.2(2)(c), her dealings with the lawsuit were terminated, and she did not retain any jurisdiction to re-visit costs.
Justice Loparco considered three Rules that may be considered a narrow exception to functus officio but held that none of the exceptions applied. The first exception was Rule 9.12, which allows the Court to correct a mistake or error in a Judgment arising from an accident, slip, or omission. Rule 9.12 was not relevant. The second exception was Rule 9.13, which allows a Court to vary a Judgment before the Judgment is entered. This Rule also did not apply. Finally, the third exception was Rule 10.30(1)(c), which allows the Court to make a costs award even after Judgment on the substantive issues. Justice Loparco found that the exception allowed by Rule 10.30(1)(c) applies in circumstances where the Court has not made any determination on costs in the initial Decision. Rule 10.30(1)(c) did not apply. Accordingly, Justice Loparco found that the Court was functus officio and the Applicants were not entitled to revisit the costs decision at Trial.View CanLII Details