The Court made a ruling on Costs following a previous Decision that the Court had rendered. The previous Decision was a dispute over the use of an easement, and thus there was no monetary amount claimed by either party. The Applicant noted that since no monetary amount was claimed or recovered, Column 1 of Schedule C costs would usually apply. However, the Applicant also noted that it is appropriate to award costs above Column 1 where the outcome is of particular importance to the parties. The Applicant then argued that the factors in Rule 10.33(1) support an increased Costs award, because the issues were complex, were of importance to the common law generally, and each party had filed four written briefs. The Applicant also claimed that his legal fees were $108,000, which was much higher than the $6,300 that he would be entitled to under Column 1 of Schedule C.

The Court reiterated the Court of Appeal’s comments in Hill v Hill, 2013 ABCA 313 (CanLII), which held that in considering Rule 10.31, “Schedule C is a purely-optional rubber stamp for a Judge, who may use it or not, or amend it, as he sees fit.” The Court held that this situation was one that justified the exercise of the discretion to award Costs based on a percentage of fees actually incurred. The discretion is conferred by Rule 10.31(3)(a), with reference to the factors outlined in Rule 10.33(1) and by the jurisprudence that considers those Rules.

The Court awarded the Applicant 40% of the fees that he actually incurred, along with disbursements and other charges as claimed by the Applicant.