Sullivan J

10.33: Court considerations in making costs award

Case Summary

This was an Application by the Defendant for Costs on a full indemnity basis arising from the Decision of Justice Sullivan, cited at 2014 ABQB 413, which found that the deceased was in an adult interdependent relationship with the Defendant at the time of his death. The Plaintiff, the brother of the deceased, disputed that relationship. Sullivan J. found nothing in the Surrogate Rules to shelter a losing party from ordinary Schedule C Costs or ordinary Costs principles. Rather, Surrogate Rule 90(h) made it clear that an unsuccessful claim might be liable for penalty Costs if the conditions in the Rule were found to apply. Sullivan J. noted the comments of Justice Clark in Anderson Estate, 2013 ABQB 517, regarding the factors to consider in making a Costs award as enumerated by Rule 10.33.

Sullivan J. concluded that, if there was ever a time when the position of the Plaintiff was reasonable, that time had terminated when the Defendant filed her Affidavit setting out the extent and the detail of her relationship with the deceased. In the result, the Plaintiff’s Cross-Application for Costs was denied. The Defendant, being the successful party, was entitled to Costs; however, Sullivan J. was not satisfied that this matter reached the status of full indemnity Costs, although it was close. Sullivan J. therefore awarded a portion of Costs on an enhanced basis, fixed at $50,000.

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