VAS v GRACE, 2014 ABQB 268


10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award

Case Summary

The Plaintiff sued certain members of the Edmonton Police Service, the Edmonton Remand Centre and certain of its employees for damages she alleged she suffered as a result of wrongful arrest and imprisonment. The Plaintiff had chosen a psychiatrist as an expert witness who would not provide a written opinion prior to trial in December of 2013. As a result, the Court required the psychiatrist to testify in chief and then adjourned the Trial for several months to allow the Defendants to decide how to cross-examine that witness and whether to call experts of their own. The Court ordered the Plaintiff to pay $4,750 in thrown-away Costs in connection with the lengthy adjournment.

The issue here was whether those Costs already ordered should be paid forthwith, as required by Rule 10.29(1) and as requested by the Defendants; or whether the Court should, because the Plaintiff had not abused the process and because a requirement to pay Costs forthwith might constitute an impediment to her ability to continue the Action, exercise its discretion to award Costs in the cause.

Justice Veit determined that the Costs should be paid forthwith. Justice Veit observed that Alberta has, since the decision in Anderson Preece & Associations Inc v Dominion Appraisal Group Inc, 2000 ABQB 979, adopted a “pay-as-you-go” Costs regime; therefore, even assuming for the purpose of the Application that Rule 10.31(6) had not restricted the Court’s discretion to deviate from Rule 10.29(1), in order to make access to the Court system as predictable as possible, the Court should depart from the adopted Costs regime only if such a departure is justified by the particular circumstances of a case. In determining whether the Court should exercise its discretion to depart from Rule 10.29(1), Veit J. provided five reasons that militate against interference with the standard rule that interlocutory Cost awards should be paid forthwith. Three of the reasons have general application, and two are particular to the facts of the case:

1.         The Rules have changed since Anderson Preece, which held: for the policy reasons that have been well explored in the case law, the standard, or general, or default interlocutory Costs rule is now “pay-as-you-go”;

2.         Access to the Courts should be made as predictable as possible; therefore, standard rules should only be displaced where the circumstances of the case establish that it would be unfair or inappropriate to apply the general rule;

3.         Thrown-away Costs are, by their very nature, Costs which should not have had to be incurred; it doesn’t matter if the party who has wasted money on those steps eventually wins or loses the lawsuit. Therefore, there is no point in waiting to pay for those Costs until the final result of the lawsuit is known;

4.         While it is true that in this particular case, the Plaintiff did what she could to alleviate or reduce the prejudice caused to the Defendants by her choice of expert, that effort on her part was already recognized in the substantive award of Costs by reducing the amount of Costs that would otherwise have been awarded; and

5.         The Plaintiff, who is the party who asks the court to depart from the rules and who therefore, bears the burden of convincing the court that such a departure is justified, had not provided any evidence to suggest that the obligation to pay the Costs forthwith would constitute an impediment to the continuation of her lawsuit.

Under the circumstances, Veit J. ordered that the Costs be paid forthwith by the Plaintiff.

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