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: email@example.com or phone 780-424-5345.