Index

February 2 , 2021

Costs Clarified at Last


January 4 , 2021

Urgent!


December 10, 2020

Traps and Confusion in Service Times


November 24, 2020

Don't Cut Corners


October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2021 J.E. Côté

COSTS CLARIFIED AT LAST

90 years ago, aviators and archaeologists rediscovered intact impressive Mayan temples hidden for 300 years by overgrown jungle. The Alberta Court of Appeal has just done something similar for party-party costs in Alberta. The decision is McAllister v. Calgary (City) 2021 ABCA 25, Calg 1901 0003 AC (Jan 27). If you do litigation, you will want to read its paragraphs 17 to 26.

For a generation or more, party-party costs became increasingly detached from reality, and filtered through screens of conflicting Queen’s Bench authority. Some contradictions were express, some hidden in the jungle. The cause of all that is complicated. Twice, governments refused for years to enact what the Rules Committee unanimously recommended. And some Queen’s Bench decisions did not look at binding appellate authority. But now things are much better.

Summarizing this new Court of Appeal costs decision takes over a page, all of which will go into this year’s Civil Procedure Handbook (as will taking the machete to a lot of jungle vines). In this brief blog, what will help you better is a list of heresies and canards which the Court of Appeal exposes and overrules.

These are NOT true, and never were:

1. that costs awards are immune from appellate review and reversal;

2. that Queen’s Bench is very limited in the methods which it can use to calculate costs;

3. that Schedule C is ever mandatory for a judge or master, or that it is the preferred or default basis, or a necessary starting point;

4. that often indemnifying the winning party is not the principal aim of costs;

5. that looking at what full indemnity would be, or trying to attain 40% or 50% of that is not necessary;

6. that Schedule C sets the right level of indemnification, or is a proxy or alternative to that factor, and judges need no other test of level;

7. that Schedule C lists all the work in a lawsuit relevant to compute costs;

8. that Schedule C is just as useful at or near the end of a full lawsuit, as it is at interlocutory stages;

9. that traditional costs principles are old fashioned and gone now;

10. that only one method can be used to calculate the final number, without any other cross-checking.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.