KENT v MARTIN, 2011 ABQB 163


10.30: When costs award may be made
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The issue before the Court was the appropriate costs award in light of a breach of the Implied Undertaking. Belzil J. held that Rules 10.30, 10.31 and 10.33 "are broadly drafted to provide for ample latitude in awarding costs". The Court relied on prior decisions which interpreted the old Rules, including the Court’s decision in LSI Logic Corp of Canada Inc v Logani, 2001 ABQB 968, which provided that "Schedule C costs are not to be applied mechanically in every case." The Court also cited Jackson v Trimac Industries Ltd, [1993] AJ No 218, which held "an award of solicitor client costs requires rare and exceptional circumstances". Belzil J. held that the costs to be awarded must be influenced by the breach of the Implied Undertaking, while at the same time recognizing that the situation did not warrant solicitor client costs as there was no "egregious, ongoing conduct by a litigant". His Lordship stated:

Costs are always in the discretion of the Court but in the normal course, costs are awarded to the successful litigant on a party party basis absent rare and exceptional circumstances.

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