LEMAY v CANADIAN NATURAL RESOURCES LIMITED

The Applicant landowners had unsuccessfully appealed a decision of the Surface Rights Board to the Court of Queen’s Bench, following which the Respondent operator sought Costs of the Appeal. Upon acknowledging a successful party’s entitlement to Costs pursuant to Rule 10.29, subject to the Court’s general discretion under Rule 10.31 which requires the Court to consider the factors listed in Rule 10.33, the Court generally found in favour of awarding the Respondent Costs pursuant to Schedule C. While the Court disallowed second counsel fees, the Costs awarded were enhanced 25% to account for inflationary erosion of the Schedule C tariffs.

A considerable portion of the Respondent’s claim for Costs was comprised of disbursements. Guided by the principle of proportionality codified in Rule 1.2, Justice Fagnan disallowed much of the disbursement claim, citing concern for the Respondent’s expenditure of resources which included second counsel participation, long-distance travel, and expensive but ultimately unnecessary fresh expert evidence, the outlay for which significantly exceeded the small amount at stake on Appeal.