10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The Plaintiff was unsuccessful before the Alberta Human Rights Commission and broadly appealed the Commission’s ruling on the merits. The Defendant appealed the Commission’s decision not to award Costs. Madam Justice Ross dismissed the Appeals, and the Defendant sought Costs of the Appeal, including on an enhanced basis.

The Plaintiff argued that Costs should not be awarded, as neither the Appeal nor cross-Appeal had been successful. Justice Ross observed that pursuant to Rule 10.29, a successful party is entitled to Costs, and as the scope of the Appeal far outweighed the scope of the Cross-Appeal, the award of Costs arising upon the Plaintiff’s success in defending the cross-Appeal would be set off against the award of Costs arising upon the Defendant’s success in defending the Appeal.

Turning to the scale of Costs, Justice Ross found the Appeal to fall within Column 3 of Schedule C, as amended in May of 2020, and the cross-Appeal to fall within Column 1. On account of significant factual complexity requiring multiple hearing days and voluminous written materials, the Court directed that Costs be assessed under Items 18 through 21 of Schedule C, as if the Appeal had proceeded before the Court of Appeal. The Court also awarded the Defendant second counsel fees. Justice Ross declined the Defendant’s invitation to depart from an assessment of party and party Costs per Schedule C, recognizing the line of cases which suggest a target for partial indemnity, but noting that the amendment of Schedule C in May of 2020 had cast serious doubt on the persisting value of such authority.

With respect to the Defendant’s claim for enhanced Costs, the factors in Rule 10.33 were reviewed as governing judicial discretion. Considering the complexity of the Appeal, the lack of merit of the Plaintiff’s allegation of the Commission’s bias, and the irrelevance of the Plaintiff’s plea of impecuniosity, the Court ordered enhanced Costs of the Appeal from Column 3 to Column 4.

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