Justice Kubik provided a decision with respect to Costs arising from the Trial of McAllister v Calgary (City), 2018 ABQB 480 (CanLII) (the “Underlying Action”). The Underlying Action was with respect to liability only and, at the time, damages had neither been settled nor determined (the “Liability Trial”).

The Defendant, the City of Calgary, argued that until the Plaintiff, Mr. McAllister’s damages were settled or assessed it was premature to determine the Plaintiff’s entitlement to Costs. Mr. McAllister argued that he was successful on the issue of liability, following a week-long Trial, and should be entitled to an award of Costs with respect to the Liability Trial.

Kubik J. reviewed the laws governing Costs, and specifically Rules 10.29(1) and 10.30(1) which provide respectively that a successful party is entitled to Costs and that a Costs award may be made in respect of Trials and all other matters in an Action, after Judgment or a final Order has been entered. Justice Kubik concluded that it was not premature to award Costs with respect to the Liability Trial.

Kubik J. further assessed that Costs should be calculated under Column 3 of Schedule C of the Rules (the “Costs Schedule”), and took into account the factors set out in Rule 10.33. Kubik J. noted that the Costs Schedule is grossly out of date in terms of value and the conduct of the parties in relation to the litigation. While finding no misconduct during the Liability Trial, it was Her Ladyship’s view that the Costs Schedule should be “grossed-up to reflect a true monetary value” of litigation. In that regard, Her Ladyship found evidence before the Court indicating a rate of inflation of 46.60% since the commencement of the Action. Accordingly, a 46.60% gross-up was applied to approximate the reasonable Costs in 2018 for the steps taken to bring the matter to Trial.