BUYE v FISHER, 2026 ABKB 589

This matter was a costs decision following a Trial in which the Applicant challenged instruments and transactions involving her mother, Joyce Fisher, and her siblings, Debbie Fisher and Rene Fisher (the “Respondents”). In the Trial Decision, Justice Bourque upheld Joyce’s enduring powers of attorney, personal directives, and most disputed transactions, but invalidated a $2 million inter vivos gift that Joyce had made to the Respondents. Bourque J. declined to defer costs pending the Applicant’s Appeals because neither decision was subject to a stay and the Applicant provided no supporting authority.

In determining substantial success pursuant to Rule 10.33(1)(a), the Court held that success was not measured by tallying the issues won, but by objectively assessing the parties’ quantitative and qualitative success relative to each other. Although the Applicant succeeded in invalidating the $2 million inter vivos gift, Justice Bourque found that this provided limited practical benefit and was narrow compared with the relief sought and issues litigated. By contrast, Joyce and the Respondents successfully defended all other instruments and transactions, defeated the Applicant’s undue influence claims, and defeated the Applications concerning Debbie’s appointment, indemnification, and accounting. The Court found that Joyce and the Respondents were substantially successful.

Bourque J. also considered that the value of the upheld transactions exceeded the invalidated gifts and that the issues were important to the Respondents because the Applicant’s allegations impugned their character, honesty, and integrity (Rule 10.33(1)(c)). Although the Court did not find the Action overly complex pursuant to Rule 10.33(1)(d) or give significant weight to the Applicant’s litigation conduct pursuant to Rule 10.33(2)(a), (b), (d), and (g), the Applicant’s rejection of a formal Settlement Offer that would have produced a substantially better outcome weighed heavily pursuant to Rule 10.33(2)(h).

The Court awarded Joyce and the Respondents costs payable by the Applicant. However, Justice Bourque denied Joyce full indemnity costs because the record disclosed no misconduct, exceptional circumstances, or other principled basis for departing from the ordinary costs regime. Bourque J. noted that Column 1 did not reflect the value of the disputed transactions, while Column 5 with the requested multiplier would provide excessive indemnification because Joyce and the Respondents had not succeeded on every issue. Accordingly, the Court awarded Joyce and the Respondents Schedule C, Column 4 costs. The Court also awarded the Respondents a 2.5-times multiplier on the portion of their Schedule C costs attributable to litigating the dismissed allegations of undue influence, together with second counsel fees, deemed to be 35% of their Schedule C costs.