HEINE v WORSFOLD, 2025 ABKB 650

The substantive issue in this case was whether the parties’ Award of adult interdependent partner support and division of family property, arising from Arbitration, was enforceable or should be set aside. The Court found the Award was final and binding, enforced the Award, dismissed the Application to set aside the Award, and settled the terms of the necessary King’s Bench Judgment arising from the Award.

Given this, the Respondent sought Costs of the Applications, arguing that they were wholly successful and entitled to Costs on a solicitor-client basis or, in the alternative, party and party Costs, presenting options ranging from $4,050 to about $40,000, plus disbursements.

The Court reviewed the Costs framework, including Rules 10.31 and 10.33, the law on party and party costs, litigation misconduct, and unfounded allegations of fraud made by the Applicant. The Court found that the Respondent was substantially successful and was presumptively entitled to Costs with no reason to deprive the Respondent of their Costs entitlement.

The Court rejected the Applicant’s accusations of misconduct by the Respondent which revolved around the Applicant’s inability to advance its allegation of fraud. As stated in a previous decision of the Court, the Applicant could not pursue allegations of fraud that could have been pursued in the Arbitration. The Court did not find the Applicant’s other complaint about difficulty in scheduling a cross-examination of the Respondent, or the Respondent’s expressing concerns about being in the same room with the Applicant during a cross-examination, to disentitle the Respondent to Costs or warrant a Costs reduction, as there was obviously friction and mistrust between the parties and this one manifestation thereof did not rise to the level that should affect Costs in view of the overarching objectives of Costs.

The Respondent also argued that they made an offer to settle that mirrored the result obtained in Court and that the Court should award enhanced Costs on account of the offer. The Court emphasized that Courts have wide discretion in deciding what Costs consequences, if any, should follow a Calderbank offer and Rule 14.59, and that offers must be realistic, reasonable and represent a bona fide compromise or other articulable reason for settlement. The Court was not satisfied on the submissions that the offer should be afforded Costs consequences because it was essentially an offer to “think again” and abandon the Applicant’s Application, without attaching Costs consequences to the offer.  

Overall, the Court was satisfied that Costs in the range of $10,000 was appropriate in the circumstances. It was based on a reasonable and proportionate amount for a routine Special Application for enforcement of an Arbitration Award with appropriate enhancements to reflect the factors in Rules 10.33.