BROWN v ALBERTA

This decision addressed Costs following the dismissal of an Application seeking declaratory and injunctive relief related to the closure of a supervised consumption site.

Alberta, as the successful party, sought Costs under Rule 10.29(1), calculated under Column 1 of Schedule C. The Applicant opposed Costs, arguing that the litigation was brought in the public interest, raised novel Charter issues, and warranted a departure from the default rule that a successful party is entitled to Costs.

Justice Yungwirth reaffirmed that while public interest litigation may justify a departure from the principle that Costs follow the event, there is no blanket exemption from Costs in Charter cases. In determining whether to depart from the default rule, the Court applied the discretionary criteria under Rule 10.33, together with the factors articulated in Pauli v ACE INA Insurance Co, 2004 ABCA 253, namely whether the Action:

(a) was brought in the public interest;

(b) raised a novel point of law;

(c) constituted a test case; and

(d)engaged access to justice considerations.

Although the Application engaged a matter of public health importance, the Court found that the legal issues were not novel, did not constitute a test case, and were governed by settled Charter jurisprudence confirming that there is no constitutional right to state-funded health services. The Applicant knowingly assumed the litigation risk in advancing arguments contrary to established authority.

Balancing the public interest and access to justice factors against Alberta’s success and the absence of novelty, Justice Yungwirth entered a modest Costs Award in favour of Alberta under Column 1 of Schedule C.