KENT v MARTIN, 2011 ABQB 675


3.66: Costs
10.29: General rule for payment of litigation costs
10.30: When costs award may be made
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

This Application dealt with determining the appropriate Costs award. The Plaintiff had been successful in an Application to amend its Statement of Claim as well as for relief from his obligation under the Implied Undertaking Rule.

Miller J. stated that Rule 3.66 deviates from the standard Rule that if you win an Application you are entitled to Costs and referred to Koppe v Garneau Crafts Ltd, 2005 ABQB 727 wherein the Court stated, with respect to the predecessor to Rule 3.66, that:

Rule 141 does not say that the applicant must pay the costs of the fight over whether it has the right to amend, even if it wins that fight. That would be a most undesirable result, because it would mean that the respondents on motions like that could defend them with impunity, knowing that win or lose they would receive costs.

In this case, the amendment was opposed on the basis that the Implied Undertaking Rule applied and the Plaintiff was not able to use that information in these proceedings. Miller J. determined that Rule 3.66 applied to the amendment Application only and Rule 10.29 applied to the portion of the Application regarding the Implied Undertaking Rule. Miller J. stated that Rules 10.30, 10.31 and 10.33 are drafted in such a way as to provide a great deal of latitude to the Court. As such, Miller J. awarded Costs to the Plaintiff under the appropriate Schedule C Column for the Application for relief from the Implied Undertaking Rule. The amendment Application arose as a result of a surprise disclosure during Questioning. As such, the Plaintiff could have had no knowledge of this information prior to the Questioning. Miller J. awarded party-party costs to the Plaintiff for the amendment Application.

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