Rowbotham, Beilby and Brown JJA

10.30: When costs award may be made
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
13.5: Variation of time periods
14.88: Cost awards
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

Four power companies unsuccessfully appealed two decisions of the Alberta Utilities Commission. Permission to Appeal was granted on limited grounds, which grounds excluded a review and variance Decision. The Respondent utilities commission and utilities operators requested that certain paragraphs of the Appellants’ factums be struck for discussing issues for which Permission to Appeal had not been granted. The Appeals were dismissed and the impugned paragraphs of the offending factums were struck. The Decision was silent on Costs, and the parties applied for directions with respect to Costs.

The Appellants argued that the Court was functus officio with respect to Costs by reason of it having entered a final judgment. The Court held that Rule 10.30(1)(c) creates an exception to the functus officio doctrine. Rule 14.88 provides the presumption that a successful party to an Appeal will be entitled to Costs as set out in Schedule C, and that the appropriate scale will be the same as that which applies to the Order or Judgment appealed from. The Information Note associated with Rule 14.88 states that the Reasons for Judgment of the Court of Appeal will not make any specific direction with respect to Costs, unless a request for a specific direction is made within two months of the pronouncement of the Decision. Rule 13.5(2) allows for the two month time limit in the Information Note to be relaxed.

The Respondents sought Costs on Column 5 of Schedule C against each of the four Appellants. The Respondents argued that Column 5 was appropriate because of the economic consequences at stake in the Appeal. The Appellants argued that Column 1 of Schedule C should apply because no monetary amount was directly at issue. The Court affirmed the principle that Courts have wide discretion in awarding Costs under Rule 10.31, and that the discretion is to be exercised while considering the factors provided in Rule 10.33. While Column 1 is the presumptive scale for matters which have no monetary amounts, Courts have wide discretion to fix an appropriate scale. The Court held that although the issues raised in the Appeal concerned statutory interpretation, that interpretation was in the context of a complicated legislative framework and an evolving industry and regulatory regime. Column 5 was therefore appropriate. Costs were payable for the preparation of a Statement of Facts, second counsel Costs and for the appearance at a contested Application before the Court of Appeal.

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