14.88: Cost awards

Case Summary

The Applicant, Ms. Stubicar, sought and was granted an adjournment on a permission to appeal Application, seeking leave to Appeal a Decision made under the Municipal Government Act, RSA 2000, c M-26 (the “MGA”). The opposing Party, JEMM Sunnyside Ltd. (“JEMM”), sought solicitor-client or enhanced thrown-away Costs of the adjournment.

Applications for permission to Appeal under the MGA are considered urgent and are to be heard expeditiously. Ms. Stubicar’s counsel sought a hearing date 65 days after the initial Decision was made. She refused to consent to earlier dates, and when an Order was made setting a time period for the hearing, failed to provide availability in the prescribed window. Counsel to Ms. Stubicar then sought an Order overturning the scheduling Order, arguing that the date set (in the absence of her input) was unfairly prejudicial. In the interest of ensuring Ms. Stubicar was not prejudiced by her Counsel’s lack of professionalism, Justice Kirker adjourned the matter by two weeks to ensure Ms. Stubicar’s counsel could file a Memorandum of Argument.

At the hearing set by Justice Kirker, Ms. Stubicar’s counsel was not prepared to argue her permission to appeal Application. She had not filed a Memorandum of Argument. Instead, she sought an adjournment. The adjournment was granted by Justice Wakeling in recognition of the prejudice to Ms. Stubicar if the Application was heard without a Memorandum of Argument.

The permission to appeal Application was heard and denied three weeks later. JEMM sought Costs for its preparation for the scheduled hearing which resulted in the final adjournment, and other scheduling issues. It argued that it could not use the Memorandum of Argument initially drafted and filed prior to the adjournment, because it was drafted without the benefit of Ms. Stubicar’s Memorandum of Argument.

Justice Wakeling considered Rule 14.88, which provides that the successful Party to an Application is entitled to Costs against the unsuccessful Party, unless otherwise ordered.

Justice Wakeling found that Ms. Stubicar’s counsel engaged in litigation misconduct by continuously resisting directions from the Court and by seeking an adjournment without a valid reason. He therefore granted a significant portion of the Costs sought on an estimated full indemnity basis for the work done by counsel to JEMM for the adjourned hearing.

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