The Plaintiffs filed a Class Action against Her Majesty the Queen in Right of Alberta (“Alberta”) for holding numerous children in its custody, away from their families, without lawful authority. The Case Management Judge certified the Class Action (“Certification Order”) and granted the Representative Plaintiff advance Costs to continue with the class proceedings (“Costs Order”), holding that: (i) the Representative Plaintiff was impecunious and would not be able to proceed without advance Costs; (ii) the case was prima facie meritorious; and (iii) the issues raised were of public importance and had not been resolved in previous cases. Alberta appealed the Certification Order, and applied for permission to Appeal this Order pursuant to Rule 14.5(1)(e). In turn, the Representative Plaintiff applied for advance Costs to oppose Alberta’s Appeal of the Certification Order.

The Court of Appeal noted that permission to Appeal a Costs Order is to be granted sparingly. The threshold for such permission is high and the burden is on the Applicant. To be able to Appeal a Costs Order, the Applicant must establish: (i) a good arguable case having sufficient merit to warrant scrutiny by the Court; (ii) issues of importance to the parties and in general; (iii) the Costs Appeal has practical utility; and (iv) no delay in proceedings will be caused by the Costs Appeal.

Greckol J.A. held that Alberta failed to show a meritorious argument regarding the findings on the impecuniosity and public importance factors. Alberta did not challenge the finding that the claims were prima facie meritorious; therefore, Alberta had not established an error in the Costs Order that would warrant appellate intervention. Further, the public importance of an advance Costs ruling in this case was circumscribed by the unique and exceptional facts and legal issues. Justice Greckol held that, even if the issues were of general importance and practical utility, and the delay was insignificant, Alberta still failed to show any merit to the Appeal, let alone a good, arguable case with sufficient merit to warrant scrutiny by the Court. The Application for permission to Appeal was denied.

The Court of Appeal considered whether to award advance Costs for the Appeal of the Certification Order. In defending the Application, Alberta argued that advance Costs were at least partially foreclosed because the Plaintiff’s Appeal Factum was late. Rule 14.90(1)(a)(i) provides that a party is not entitled to Costs for a late Factum, even if the Appeal is successful. Greckol J.A. ultimately held that the Representative Plaintiff fulfilled the necessary criteria and advance Costs for the Appeal was granted in the amount of $20,000.