TERRIGNO v WEAL, 2026 ABKB 501

The Plaintiff, as the successful party to an Appeal of an Applications Judge’s decision, sought costs from the Defendant. The Plaintiff was self-represented and had only retained counsel in a partial capacity.

The Plaintiff argued that, despite being self-represented, he was entitled to costs because he incurred legal fees through a partial retainer. Additionally, the Plaintiff sought enhanced costs based on alleged litigation misconduct by the Defendant, which prolonged the proceedings. The Defendant contended that the Plaintiff was not entitled to costs as a self-represented litigant. In the alternative, the Defendant argued that costs should be reduced due to the Plaintiff’s litigation misconduct related to procedural deficiencies.

Oviatt J. acknowledged that Rule 10.31(5) allows the Court to award Schedule C costs to a self-represented litigant in appropriate circumstances, although such awards are exceptional. Justice Oviatt clarified that the rationale for denying costs to self-represented litigants is typically the absence of legal fees. As the Plaintiff incurred legal fees through a partial retainer, the Court held that he was entitled to some costs.

Justice Oviatt also considered Rule 10.33 and held that neither party’s conduct warranted enhanced or reduced costs. Oviatt J. found that the Defendant’s unsuccessful service argument did not amount to litigation misconduct, particularly since the Plaintiff’s own conduct complicated the service issue. Similarly, Justice Oviatt found that the Plaintiff’s late filing of new evidence did not justify reducing costs, as the evidence was at least partially responsive to issues raised during litigation.

With respect to quantum pursuant to Rule 10.31(3), Oviatt J. held that costs should always be reasonable and proportionate. While noting that using Schedule C is not the presumption, Justice Oviatt found it was appropriate given the uncomplicated nature of the litigation. The Court awarded 50% of Schedule C costs to reflect counsel’s limited role under the partial retainer. Oviatt J. clarified that Section 5 of Schedule C is limited to tariffs for oral questioning for discovery under Part 5 of the Rules and does not provide a separate tariff for questioning on an affidavit under Part 6 of the Rules.