LAY v LAY, 2019 ABCA 355


4.29: Costs consequences of formal offer to settle
10.30: When costs award may be made
10.44: Appeal to judge
13.5: Variation of time periods
14.5: Appeals only with permission
14.59: Formal offers to settle
14.88: Cost awards

Case Summary

The Appellants had been unsuccessful on their Appeal. The Appellants sought a ruling from the Court of Appeal on Costs of the Action or to vary the decision of an Assessment Officer on Costs. The Court of Appeal noted that an Assessment Officer decision may be appealed pursuant to Rule 10.44. Under Rule 10.44 the Appeal of the Assessment Officer’s decision is to the Court of Queen’s Bench and not to the Court of Appeal. Once the Court of Queen’s Bench issues a Decision following the Assessment Officer’s decision, then that Decision of the Court of Queen’s Bench may be appealed to the Court of Appeal if the party is granted permission to Appeal under Rule 14.5(1)(e), as a Costs Decision can only be appealed if permission to Appeal has been obtained.

The Court of Appeal therefore held that it did not have jurisdiction to make a determination on Costs and the Application was dismissed.

In obiter the Court of Appeal made a number of comments about Costs determinations. Rule 14.88(3) states that the default rule is that Costs in an Appeal will be at the same scale that applies to the Judgment appealed from. Generally, as per the “Information Note” associated with Rule 14.88, a request for specific direction on Costs must be made within two-months of the Decision. The two-month period can be varied by Rule 13.5(2) which allows the Court to extend a time period specified in the Rules. As a result, Costs can be spoken to at any time if the Court extends time pursuant to Rule 13.5. This Court stated that this conclusion is further supported by Rule 10.30(1) which states that a Costs award may be made after and Application has been decided, after a Judgment or final Order is granted, or in respect of a settlement, Application or proceeding upon agreement. The Court found that these Rules were irrelevant, as the Appellants were not seeking a ruling on Costs, but were in fact appealing the Assessment Officer’s decision.

The Court further commented on the doubling of Costs in obiter. The Court of Appeal considered the interpretation of Rules 4.29 and 14.59. In this case, prior to obtaining a Judgment, the Defendant had made a settlement offer to the Plaintiffs. The Costs award following the Judgment was doubled for all steps taken after the offer. This was in accordance with Rule 4.29. Rule 4.29 allows for a doubling of Costs for steps taken after an offer to settle is made that is more generous than the Judgment or Order. In this case, the Assessment Officer had also doubled Costs for Appeal steps taken. The Court of Appeal reiterated that Rule 14.59(4) provides that where a formal offer to settle an Appeal is made, then Costs will be awarded in accordance with Rule 4.29. No formal offer to settle an Appeal was made in this case. The Court of Appeal made no determination on the amount of Costs, but implied that the amount should not have been doubled for Appeal steps taken.

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