REMINGTON DEVELOPMENT CORPORATION v CANADIAN PACIFIC RAILWAY COMPANY

The Parties requested direction with respect to cost consequences following the disposition of appeals reported at Remington Development Corporation v Canadian Pacific Railway Company, 2025 ABCA 244. Canadian Pacific Railway Company (“CPR”) and His Majesty the King in right of Alberta as represented by the Minister of Infrastructure and the Minister of Transportation (“Alberta”) were successful on their Appeal of the Trial Decision and Remington Development Corporation’s (“Remington’s”) Cross-Appeal for punitive damages. The Court of Appeal ordered a new Trial. CPR and Alberta were additionally successful in an application for a stay of the Trial Judgment and Costs Award pending the Appeal.

Pursuant to Rule 14.88(1), CPR and Alberta were prima facie entitled to costs as the successful parties on the Appeal and Cross-Appeal. Rule 14.88(3) sets out the presumption that the scale of costs on appeal is the same scale of costs at trial. CPR and Alberta therefore requested that the Court award costs on the same basis as what Remington was awarded in the Trial Decision, 50% of the reasonable and proper fees incurred on appeal. Remington requested that the Appeal costs be addressed by the new trial Judge so that the entire litigation could be assessed to consider a global award of costs. Alternatively, Remington argued that the costs should be awarded in line with Schedule “C”.

The Court determined that there was no principled reason to depart from the default rule that CPR and Alberta are entitled to costs of the Appeal as the successful parties. The Court also concluded that the costs of the Appeal should not wait to be awarded until after the re-trial, if any. Regarding the level of indemnification, the Court considered factors such as the complexity of the Appeal, the importance of the issues, and the magnitude of the Judgment. The Court determined it was appropriate to award costs at 50% of the reasonable and proper legal fees incurred by CPR and Alberta. The Court also noted that costs of the first Trial are to be addressed at the end of any re-trial.

Further, the Court reminded the Parties of Rules 10.31, 10.41 and 10.44 and that if the Parties could not agree on what legal fees were reasonable and proper, they could attend before an Assessment Officer for a direction or order. The Court also addressed certain discrete issues raised by the Parties, providing guidance that: (1) the Costs Award included costs of the successful Stay Application and its related steps; (2) costs for CPR’s new counsel to familiarize themselves with the case for the Appeal could be reasonable and proper fees; and lastly (3) Alberta’s claim for fees of “external consulting legal counsel” as a disbursement was noted but not enough information was provided to depart from the general rule that legal services should be assessed as fees not disbursements. However, the Court noted that an Assessment Officer could make the necessary determinations, if required.

*Wakeling J.A. did not participate in the disposition on costs (as he retired).