10.29: General rule for payment of litigation costs
10.32: Costs in class proceeding

Case Summary

This Costs ruling arose from the Court of Appeal having reversed a Decision of the Alberta Court of King’s Bench which set aside the certification of a class proceeding on the basis that the Pleadings did not disclose a cause of action.

The Court referred to Rule 10.29(1), which sets out the general rule that a successful Party is entitled to Costs. However, when a class proceeding is involved, Costs must also be determined in light of Rule 10.32, which requires an assessment of: (a) the public interest; (b) whether the Action involved a novel point of law; (c) whether the proceeding or Action was a test case; and (d) access to justice considerations.

The Court found that the issues in this class proceeding were not issues of public importance, but rather personal claims of the Representative Plaintiffs. While the claim raised by the Representative Plaintiff was novel, it could be resolved with certainty in light of the statutory regime.

The Court rejected the Respondent’s argument that a Costs Award would have a negative impact on access to justice and went on to highlight the objectives of class proceedings including, among others, access to justice, efficiency and behaviour modification. Noting that the conduct of the Appellant was lawful and that the Pleadings did not disclose a cause of action, the Court found no concerns regarding behaviour modification or judicial economy and efficiency.

Considering the Appellant’s claim of quadrupling the assessed legal fees, the Court confirmed that a successful party may not claim assessed Costs based on a percentage indemnity of actual fees charged without disclosing the amount charged and justifying that amount. The Court recognized the impact of the underlying litigation on the Appellant but noted that access to justice considerations and the purposes of class proceedings could moderate the quantum of a Costs Award.

In the result, the Court awarded the successful Appellant Costs pursuant to Column 5 of Schedule C but refused to quadruple the amount.

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