10.2: Payment for lawyer’s services and contents of lawyer’s account
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

This was a Costs Decision arising from a complex Trial.

The Court began its analysis by noting the general rule under Rule 10.29(1) that the successful party to an Application or Action is entitled to Costs. The Court also adopted the reasoning in McAllister v Calgary (City), 2021 ABCA 25, wherein the Court held that where a Judge awards a percentage of the solicitor-client Costs incurred by the client, the assessment requires a “detailed analysis” to determine whether the Costs were “reasonable and proper”, considering the factors in Rules 10.2 and 10.33. Citing Rule 10.31(2), the Court further noted that expert fees are only recoverable if ordered by the Court.

After reviewing the invoices and charts provided by the Plaintiff regarding its legal Costs, the Court found that the legal fees submitted by the Plaintiff were reasonable and proper for the following reasons: (1) the fees, while substantial, were only 3% of the total damages Award; (2) the Plaintiff succeeded at Trial; (3) the case was important for the Plaintiff; (4) the Trial was complex; (5) all parties took steps to shorten the Trial proceedings; and (6) the skill and effort of the Plaintiff’s legal counsel were exceptional. The Court further found that the above factors supported a Costs Award at the higher end and that fifty percent of the Plaintiff’s reasonable and proper legal fees was an appropriate and proportionate indemnification.

With respect to the fees and disbursements associated with the Plaintiff’s nine experts, the Court noted that the fees should be assessed based on the measurable output of the experts, namely their expert reports and testimony. The Court found that the fees of the Plaintiff’s experts were generally reasonable and proper as the expert evidence was thorough and helpful, while the Defendant’s experts, who were less qualified than the Plaintiff’s experts, offered evidence on only some of the important points. That said, the Court was satisfied that the fees charged by one of the Plaintiff’s experts were too high to be reasonable, considering the hours and rates charged as well as the quantum relative to the other experts.

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