KENT v MARTIN, 2017 ABQB 27
4.24: Formal offers to settle
4.25: Acceptance of formal offer to settle
4.29: Costs consequences of formal offer to settle
9.14: Further or other order after judgment or order entered
10.29: General rule for payment of litigation costs
10.30: When costs award may be made
10.31: Court-ordered costs award
10.32: Costs in class proceeding
10.33: Court considerations in making costs award
10.34: Court-ordered assessment of costs
Following a lengthy Trial in two defamation Actions between the parties, the Court held that the Plaintiff had been defamed by an article written and published by the Defendants. Following the Court’s Trial Decision, the Plaintiff applied for a permanent Injunction prohibiting the Defendants from publishing the article in the future, and sought partial indemnity Costs.
Justice Strekaf noted that, under Rule 9.14, a Court is permitted, after a Judgment has been entered, to make a further or other Order which provides a “remedy to which a party is entitled in connection with the judgment” so long as doing so does not require variance of the original Judgment. Strekaf J. held that the Plaintiff had not met the requirements for a permanent Injunction and dismissed the Application for such relief.
The Plaintiff sought Costs that represented a partial indemnity of his legal fees in connection with two Actions which had been combined, and a Bullock Order directing that he be indemnified by the Defendants for Costs that he was required to pay to previous Defendants who were granted Summary Dismissal in earlier stages of the Actions. The Defendants submitted that each side should bear their own Costs.
The Court held that Costs are a matter within the Court’s discretion, to be exercised in accordance with Rules 10.29 through to 10.34. Specifically, Rule 10.29(1) provides that a successful party is entitled to Costs, subject to the Court’s discretion under Rule 10.31. Rule 10.31 then provides a broad range of Costs that may be ordered, including full-indemnity and lump sum Costs. Justice Strekaf noted that Rule 10.33 lists various factors a Court may consider in awarding Costs. In this case, the Court considered the result of these Actions, the importance and complexity of the issues, the parties’ conduct to shorten or lengthen the Actions, the Defendants’ noncompliance with the Rules, and the Plaintiff’s unfounded allegations of misconduct. With respect to the Costs in connection with previous Defendants who successfully sought Summary Dismissal, the Court held that there was no reasonable basis for the Plaintiff to have added them to the Action, and therefore the Defendants were granted a credit to be set-off against any Costs awarded to the Plaintiff.
Strekaf J., as part of the consideration with respect to Costs, reviewed the effect of settlement offers. The Defendants had relied on Rule 4.29(2) and argued that the Plaintiff should not be entitled to Costs because the Defendants had achieved a result at Trial that was more favourable than their Formal Offers to the Plaintiff. The Court reviewed relevant case law and each of the Defendants’ three Offers to the Plaintiff, and determined that none of the three Offers triggered Rule 4.29(2): the Defendants failed to establish that the Judgment was more favourable to them than the first Offer; the second Offer did not meet the requirements for a Formal Offer as set out in Rule 4.24 (2); and the third Offer required the Plaintiffs to waive certain rights pursuant to Rules 4.25(2)(a) and 4.25(3). As a result, the Offer was inconsistent with Rule 4.25(1), and therefore did not qualify as a Formal Offer for the purpose of Rule 4.29(2). As Rule 4.29(2) did not apply, the Court needed not to consider the provisions under Rule 4.29(3)(e) with respect to the third Offer.
Justice Strekaf awarded taxable Costs and reasonable disbursements to the Plaintiff, in the net amount of $250,000. In awarding taxable Costs, Her Ladyship noted Rule 10.31(5), which allows Costs for steps taken by self-represented parties to be included in the taxable Costs calculation. Strekaf J. observed that the Plaintiff was represented throughout the litigation, and only elected to represent himself for some steps to avoid legal expenses. The Court found that it was not unreasonable to include those steps in the calculation of the Plaintiff’s taxable Costs.View CanLII Details