UMPERVILLE v VANBERG, 2021 ABQB 520
10.2: Payment for lawyer’s services and contents of lawyer’s account
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award
10.34: Court-ordered assessment of costs
This Judgment considered Costs payable in respect of an Application to vary an Order directing payment of expenses, pursuant to section 7(1)(a) of the Alberta Child Support Guidelines, Alta Reg 147/2005. The Applicant was successful in the underlying Application and therefore sought Costs, calculated in reference to Schedule C of the Rules, as well as in reference to a Calderbank offer that was served on the Respondent during the proceedings. Ultimately, the Court awarded Costs on an indemnity basis at 40% of the Applicant’s Costs, to be assessed pursuant to Rule 10.34, and doubled for steps taken following deliver of the Calderbank offer.
In making its determination, the Court surveyed Rules 10.29, 10.31 and 10.33 and case law applicable thereto, on which basis, it concluded as follows: (1) a successful party is prima facie entitled to Costs from the unsuccessful party; (2) in determining what amount of Costs should be awarded, the Court may consider the amount claimed and recovered, the importance of the issue being litigated, the complexity of the Action, the apportionment of liability and conduct of a party that shortened the Action; (3) the Court has broad discretion to craft an award that is reasonable and proper, appropriate in the circumstances, or both; and (4) the Court may award any amount that it considers appropriate in the circumstances, including but not limited to an award of Costs on the basis of an indemnity for a party's legal fees or a lump sum instead of, or in addition to, assessed Costs.
The Court further noted that there is no presumption that Costs should be awarded on the basis of the appropriate column of Schedule C and that the ultimate purpose of a Costs award is to provide the successful party with partial indemnification of its Costs. Finally, the Court noted that, if a trial judge awards Costs on the basis of a percentage indemnity, then either an assessment officer or a judge should consider the reasonableness of the legal services performed and the amounts charged for those services, in light of Rule 10.2, and the factors enumerated therein.
Applying these legal conclusions to the facts, the Court noted that the Application was neither important in terms of the issues litigated nor complex, that the Applicant was entirely successful and that the Applicant had made numerous efforts to resolve the matter, including delivering the Calderbank offer, which was not accepted notwithstanding the reasonableness of its terms.View CanLII Details