10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award
14.5: Appeals only with permission

Case Summary

Tibor Uhrik and Lieselotte Litzius (collectively, the “Plaintiffs) were litigants subject to Court access restrictions. The Plaintiffs brought an Action against their former legal representatives (the “Defendants), claiming, among other things, negligence. The proceedings were stayed indefinitely due to a lack of merit, and the Plaintiffs were subjected to Court access restrictions, requiring Court permission for the Stayed Action to continue. Thus, the matter before Nielsen A.C.J. was to determine whether the Plaintiffs’ Application to continue the Action should be permitted.

In the Court’s analysis, it applied the common law test for leave to continue or initiate litigation. The Court concluded that the Plaintiffs’ request to continue the Action should be dismissed, as the Plaintiffs had not satisfied their obligation that, on a balance of probabilities, there was a reasonable basis for the Action. In doing so, the Court noted that Rule 14.5(4) did not allow for the Plaintiffs to appeal the Decision to grant or deny leave to initiate or continue litigation to the Alberta Court of Appeal. The Court did clarify that a litigant who is denied leave to initiate or continue litigation by the Court of King’s Bench of Alberta may, however, seek leave from the Supreme Court of Canada.

The Court then directed its attention to the issue of Costs. The Statement of Claim for the Action was permanently stayed as an abuse of the Court; therefore, the Defendants were entirely successful and were presumptively entitled to Costs under Rule 10.29(1). Further, the Plaintiffs’ 500-page Affidavit, along with a pattern of problematic litigation conduct demonstrated throughout the litigation forced the Court to award a lump sum Costs Award. The Court did so to ensure that the problematic litigation would come to a timely and conclusive endpoint, as the usual approach to awarding Costs would give the Plaintiffs yet another opportunity to inflict harm on the Defendants. Nielsen A.C.J. also concluded that the criteria pursuant to Rule 10.33 were relevant due to the baseless nature of the claim, the abusive nature of the proceedings, and because the Plaintiffs concealed from the Defendants that the Action had in fact been stayed.

Nielsen A.C.J. ordered the Plaintiffs to each pay the Defendants $2,500 in Costs, for a total Costs Award of $5,000.

View CanLII Details