The Court was required to determine the appropriate Costs award. This case is unique because, though the Applicants were unsuccessful in the underlying Application, Costs were awarded to them due to the Respondents’ conduct leading up to the Application. The Court received written submissions from counsel as to Costs after the parties were unable to agree on the appropriate Costs award.

After the parties provided written submission, the Alberta Court of Appeal released the costs decision McAllister v Calgary (City), 2021 ABCA 25. The Court relied on McAllister to establish the following principles for costs decisions:

• Costs are generally awarded to the successful party absent misconduct on their part;
• Courts should consider the factors listed in Rules 10.33(1) and (2); and
• A 40-50% level of indemnification for legal fees provides a reasonable guideline to measure “reasonable and proper costs” under the Rules.

The Court awarded the Applicants double Schedule C Costs and disbursements. His Lordship noted that he was not able to fully comply with McAllister because with the parties did not provide reliable information as to what 40-50 per cent indemnification should be as for the time period in question.