10.33: Court considerations in making costs award

Case Summary

Following her decision to dismiss the Plaintiff’s application for an extension of a Mareva Injunction and an Attachment Order against the Defendants and a Non-Party, Justice Mah ruled on costs.

Justice Mah applied the principles from Weatherford Canada Partnership v Artemis Kautschuk und Kunstoff-Technik GmbH, 2019 ABCA 92, where the Court of Appeal held that (a) cost awards must be exercised in line with the factors from Rule 10.33; (b) generally, the successful party is awarded costs on a party-and-party basis which should represent partial indemnification for approximately 40 to 50% of actual costs; and (c) the Court must balance the competing interests behind party-and-party costs: the unfairness of a successful party having to bear any costs versus the chilling effect on the unsuccessful party for having to pay all of the costs.

Justice Mah found that the Defendant and Non-Party were each entitled to costs, payable under Column 3 on a 2x multiplier. Explaining why costs were awarded on a multiplier, Her Ladyship relied on Athabasca Minerals Inc v Syncrude Canada Ltd, 2018 ABQB 551 where Jones J explained that the individual lines in Column C sometimes do not reflect the amount of work required to address the issues on an application. The Application before Justice Mah was not only for a Mareva Injunction and Attachment Order, but involved the determination of a fraudulent conveyance. Further the matter was factually dense and had a complicated litigious background which involved a Trial and two trips to the Court of Appeal.

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