The underlying Originating Application seeking a declaration that that the Respondent was disqualified from membership of the Real Estate Council of Alberta (“RECA”) was moot. The parties, however, disagreed on whether costs should be awarded, and if so, on what terms they should be awarded.

The Respondent argued that since the Applicant discontinued the Action, the Applicant should pay costs unless the parties otherwise agree, or the Court otherwise orders. Justice Grosse noted that costs were at the discretion of the Court as guided by the Rules. Rule 10.29 provides that a successful party is generally entitled to costs. Rule 10.33 sets out a list of non-exhaustive factors to be considered by the Court.

Her Ladyship found that Rule 10.29 and some of the factors in 10.33 reflected the fact that costs were awarded where there was some success on the merits which could then be assessed. In this instance, as the underlying action was moot, there was no outcome on the merits to judge. Justice Grosse found that on the facts of this case, various principles supported awarding the Respondent costs as: The Applicant had commenced the litigation; the Respondent ceased to be a member of RECA even though the Applicant did not need to make its case; and there were allegations of unprofessional and improper conduct on the part of the Respondent that she would never have the chance to address. Her Ladyship further noted that a RECA bylaw could fully indemnify the Respondent for her costs; however, she was not able to make a determination based on the record in front of her. 

Justice Grosse concluded that the Respondent was entitled to some costs and noted that she would be open to further submissions regarding the amount of such costs.