SCHEDULE C: Tariff of Recoverable Fees

Case Summary

This Application resulted from the inability of the parties to agree on Costs following an Originating Application. The Respondent sought a discretionary increase in Taxable Costs through Rule 1(4), Schedule C of the Rules.

The Court referred to RIC New Brunswick Inc v Telecommunications Research Laboratories, 2011 ABCA 10 (CA), in which Berger J.A. determined that, as under the “old” Rules, the Court retains a residual discretion to award Costs above Column 1. Michalyshyn J. noted, however, that as a starting point, where there is no amount involved, or where such amount is impossible to calculate, Column 1 applies unless the Court orders an enhanced scale. The Court noted that an enhanced scale of costs may follow from the following factors: (1) the outcome is of particular importance to the Parties; (2) the successful Party incurs significant liability to retain counsel; (3) exceptional circumstances are found; (4) the successful Party needs to defend his or her reputation or standing; or (5) the issues are complex. The Court also referred to case law (not involving Schedule C) in which a Court had tripled a tariff amount on the basis that that amount was too low given the usefulness of a brief or written final argument. On the other hand, no case law considered by Michalyshyn J. suggested that Rule 1(4) Costs could be enhanced on account of a finding that the litigation was merely without merit or misconceived.

Michalyshyn J. ordered that the Respondent receive enhanced Costs for two reasons: (1) because of the importance of the issue not only to the successful Party but also, in terms of precedent, to the public; and (2) because the Respondent, who had been self-represented through the hearing portion of the Originating Application matter, had then hired counsel, who provided much assistance to the Court with its written submissions.

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