1.4: Procedural orders
1.5: Rule contravention, non-compliance and irregularities
10.30: When costs award may be made
10.33: Court considerations in making costs award
14.25: Contents of factums
14.88: Cost awards
SCHEDULE C: Tariff of Recoverable Fees

Case Summary

The parties applied for advice and direction about several issues arising out of a Court of Appeal Decision, at 2014 ABCA 273, that partially reversed a Decision of the Alberta Securities Commission. Two of the successful Appellants sought Costs of the Appeal. The Court stated that, under Rule 14.88, the successful party is presumptively entitled to Costs on a scale that applies to the Decision appealed from. Thus, it is generally unnecessary to give any specific direction on Costs. However, Rule 10.30 confirms that Costs can be spoken to at any time, as long as an Application for a determination on Costs is made within two months from the pronouncement of the Decision. The Court noted that, under Rule 14.25(1)(f), the request for directions about Costs needs to be included in the Factum, but the failure to include the request in the Factum can be excused under Rule 1.5(4) if there is no prejudice to the other party.

The Court stated that the Appeals in this case were complex, and involved a number of issues. Taking into consideration the factors set out in Rule 10.33, the Court held that the Appellants were each entitled to Costs of the Appeal based on Column 5 of Schedule C.

The original Decision of the Commission assessed penalties against one of the Appellants, Holtby, who paid the penalties prior to the Appeal being resolved. Holtby argued that in light of the fact that some of the penalties were set aside by the Court, those funds should be returned to him. The Commission resisted, arguing that the matter had not yet been finally decided because of an upcoming Application for Leave to Appeal to the Supreme Court of Canada, and that Holtby was still subject to a penalty after the sanctions were reconsidered.

The Court stated that, although the Commission had not brought a formal Application, it was effectively seeking a Stay of the Judgment under Rule 1.4(2)(h) and s. 65.1 of the Supreme Court Act, RSC 1985, c s-26. The Court accordingly treated this Application for Directions as an Application for a Stay, and held that whether a Stay should be granted depends on the “relative strength of the parties’ positions, the balance of convenience, and prejudice that might result”. The onus of providing justification for a Stay was on the Commission, because the person who stands to benefit from a Judgment was prima facie entitled to those benefits. In this case, the Court held that it was appropriate to allow the Commission to continue to hold the disputed funds until the matter was finally resolved and Holtby’s sanctions were reconsidered.

View CanLII Details