This was a Decision for Costs arising from the dismissal of Bennington Financial Group’s (Bennington) Appeal of a Decision made by the Registrar in Bankruptcy (the Registrar). As Trustee in Bankruptcy of White Buffalo Mechanical Ltd., Faber Inc. opposed the Appeal and successfully upheld the Registrar’s Decision on the merits.

Mah J. explained that, pursuant to Rule 10.29(1), the successful party is presumptively entitled to costs, but Rule 10.31 grants the Court discretion to determine costs based on principles of reasonableness, fairness, balance and equity. Justice Mah outlined that the relevant considerations for awarding costs, as set out in Rule 10.33, include the outcome of the matter, its complexity, and whether a matter was improperly or unnecessarily brought.

The Trustee sought full indemnity Costs due to allegations of serious misconduct or exceptional circumstances, relying on Boyd v JBS Foods Canada Inc., 2015 ABCA 191. Mah J. noted Bennington’s failure to comply with procedural Orders and the lack of any explanation for what appeared to be deliberate non-compliance. Additionally, Mah J. considered that the Trustee had offered to settle by Consent Dismissal without Costs, which Bennington declined, resulting in increased Costs for the creditors of the bankruptcy estate. Consequently, Mah J. awarded the Trustee 75% of its full-indemnity Costs.