4.24: Formal offers to settle
4.29: Costs consequences of formal offer to settle
14.59: Formal offers to settle
14.88: Cost awards
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

Following the dismissal of the Plaintiffs’ Application (the “Applicants”) for permission to Appeal a Decision of the Alberta Utilities Commission (“AUC”), the parties returned before Rowbotham J.A. for a determination on Costs. The AUC did not seek Costs, but the remaining Respondents submitted that they were entitled to Costs. All parties agreed that Costs should be awarded in accordance with Column 1 of Schedule C for items 19 and 22; but AltaLink L.P. (“AltaLink”), TransAlta Corporation (“TransAlta”), and Her Majesty the Queen in right of Canada (“Canada”) sought double Costs, or enhanced Costs, for Formal Offers they made in accordance with Rule 14.59.

Rowbotham J.A. noted that Rule 14.88 provided that the successful party was entitled to Costs against the unsuccessful party. Prior to the Court’s dismissal, AltaLink, TransAlta and Canada had offered that, if the Applicants discontinued their Appeal, each party would bear its own Costs. The Applicants contended that the Appeal Rules regarding Offers did not apply to Applications for permission to Appeal. Rowbotham J.A. stated that, Rule 14.59(1) provided that 10 days or more before an Appeal is scheduled to be heard, a party may serve a Formal Offer in order to “settle the appeal or any part of the appeal in accordance with Part 4, Division 5”; and Part 4, Division 5 of the Rules, specifically Rule 4.24(1), contemplated that an Offer could be made before an Application. Her Ladyship held that the Rules were intended to manage litigation, and if a party brought an Application that was without merit, a Respondent should be able to compromise in an effort to settle the matter. Justice Rowbotham noted that this particular issue did not appear to have been judicially considered; however, under the former Rules there was nothing to prevent the Court from awarding double Costs when an Appeal was interlocutory. In this case the Offers were genuine and, as set out in Rule 14.59(4), AltaLink, TransAlta and Canada were entitled to double Costs for the period after the service of their Offers.

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