KISSEL v ROCKY VIEW (COUNTY), 2020 ABQB 570
1.2: Purpose and intention of these rules
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
Following a mixed result in a Judicial Review Application, the Applicants sought Costs pursuant to Column 4 of Schedule C. Justice Eamon considered Rule 10.29, the general Rule on Costs, and specifically that a party only needs to be substantially successful in the proceeding, and not totally successful, in order to be awarded Costs. His Lordship cited Clarke v Syncrude Canada Ltd., 2014 ABQB 430 for the principle that mixed success, which dilutes substantial success, should result in each party bearing their own Costs.
Justice Eamon then went on to consider Rules 10.31 and 10.33, noting that the Court retained wide discretion on Costs and could consider any matter related to the question of reasonable and proper Costs that may be appropriate. His Lordship also noted that Costs on Judicial Review Applications are awarded pursuant to Column 1 of Schedule C, unless “the matters at issue are particularly complex or involve matters of general importance to the public, the parties or both”.
Justice Eamon ultimately found that the success was mixed but that the Applicants substantially succeeded in their Application, that the issues were not particularly difficult, and the Action was moderately complex, that the matter was important to both the parties and the constituents of Rocky View County, and that there was an additional discrete issue raised against an employee of Rocky View County, which had failed. As a result, Justice Eamon awarded Costs to the Applicants for the substantial issues and awarded Costs to Rocky View County on the discrete issue. Justice Eamon found that Column 1 would not be fair or reasonable due to the lack of precedent and the importance of the issue, and therefore based the Costs Award for the Applicants on Column 3 of Schedule C, less 10% for the loss on the discrete issue and less 35% for the unsubstantiated allegations of bad faith (in accordance with Rule 1.2, which requires a party to proceed efficiently).View CanLII Details