The Respondent was a prisoner at the Bowden Institution, where he was serving a sentence for sexual assault and assault causing bodily harm. The Respondent made an Application for habeas corpus, which Justice Shelley rejected in a Decision reported as Rain v. Canada (Parole Board), 2015 ABQB 639 (CanLII). This Application related to Costs arising from that Decision.

The Applicant argued that it was entitled to Costs in accordance with the Alberta Rules of Court, Schedule C, for an Application with a written brief - being $1000. The Applicant also stated it was entitled to Costs for Disclosure of Records which in this case was $500 according to Schedule C. The Applicant, however, suggested that due to the Respondent’s incarceration and restricted income, he should pay $500 instead.

The Respondent said he would be pursuing his Claim at the Federal Court and requested that any Costs award be deferred until that Action has been resolved. He also stated that he received only $15 every two weeks as an inmate.

Shelly J. noted that the jurisdiction to award Costs is very broad, citing Rules 10.29 to 10.33. The Court further noted that a successful party is presumptively entitled to Costs on a party and party basis.

Shelly J. opined that unrestricted use of habeas corpus by incarcerated individuals risks unwarranted and expensive litigation paid out of the taxpayer’s purse. On the other hand, Costs should not become a roadblock to accessing the Writ of habeas corpus. The Court commented that a balance could be found in imposing more modest Costs awards, having regard for the length of the hearings, the conduct of the party, the merits of the claim, and recognizing the inmate’s special position.

The Court noted that a modest Costs award of $250 was appropriate for an unsuccessful habeas corpus Application where the Applicant advanced a well-argued and reasoned case. However, the Court found that in this case there was no merit to the Respondent’s Application, and the Applicant should face a higher and more substantial Costs penalty. The Court noted that this was in accord with Rule 10.33 which outlines the considerations that are relevant to a determination of Costs, and Rule 1.2 which aims to achieve efficient and timely resolution of legal disputes. In the result, the Court awarded Costs to the Applicant in the amount of $500.