10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

This Costs Endorsement concerned the costs involving a claim commenced by the Respondent who alleged harassment as against the Applicants which included the Calgary Police Service and the Calgary Police Association, among others.

In determining costs, the Court noted that:

  • Pursuant to Rule 10.29, a successful party to an Application, a proceeding or an action is entitled to a Costs Award against the unsuccessful party, subject to a variety of considerations including the Court’s general discretion under Rule 10.31;
  • A Costs Award is the “prima facie entitlement of the successful party, but it is not an entitlement they always obtain”;
  • Rule 10.31 reflects the basic rule that the quantum of a Costs Award must be reasonable and proper; and
  • The discretion to depart from the normal rule may be exercised when the case is one of public interest.

Specifically, the Court noted that Pauli v ACE INA Insurance Co, 2004 ABCA 253 is the leading authority when departing from the usual rule in cases of public interest and that it sets out the following non- exhaustive considerations from the jurisprudence when determining whether a case is one of public interest:

  • The proceeding involves issues the importance of which extends beyond the immediate interests of the parties involved;
  • The person has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearly does not justify the proceeding economically;
  • The issues have not been previously determined by a Court in a proceeding against the same Defendant;
  • The Defendant has a clearly superior capacity to bear the costs of the proceeding; and
  • The Plaintiff has not engaged in vexatious, frivolous, or abusive conduct.

Applying the relevant factors and principles noted in the Rules and jurisprudence, the Court noted:

  • The Respondent’s claim relating to the grievance system was a genuine public interest concern;
  • Although the Respondent’s claim regarding jurisdiction failed, it was important because when finally resolved it would provide certainty to other officers, the police force, and the Calgary Police Association;
  • A constitutional claim in light of a jurisdictional issue would be a significant financial burden to a person of average means such that Costs would be an “absolutely unacceptable burden” to place on the Respondent if in fact they were discriminated against and marginalized in the manner alleged;
  • It was undisputed that the Respondent had been on stress leave for several years and was receiving worker’s compensation benefits, providing the assurance that the claims were serious issues;
  • The Applicants could bear the Costs; and
  • The record did not indicate that the Respondent was seeking a free ride for a private or frivolous claim.

The Court concluded that the Respondent was not to be awarded costs and was not liable for costs arising from reasonable steps taken to resolve the jurisdictional issue, including tariff items for commencing the action, cross-examinations, and full day attendance on the jurisdictional applications (including written brief). The Respondent would however not be absolved from costs if any unreasonable actions were taken in the preparatory steps leading up to the jurisdictional applications. Conversely, the Court additionally noted that if Applicants committed such conduct the Respondent would be compensated for costs directly arising from it.

View CanLII Details