Category Archives: Costs

The Chilling Effect of Costs on Appeals from Residential Tenancy Dispute Resolution Service Orders

By: Jonnette Watson Hamilton

PDF Version: The Chilling Effect of Costs on Appeals from Residential Tenancy Dispute Resolution Service Orders

Case Commented On: Chisholm v Boardwalk General Partnership, 2021 ABQB 991 (CanLII)

This brief decision by Justice John T Henderson concerns the costs of appealing a decision of the Residential Tenancy Dispute Resolution Service (RTDRS) to the Court of Queen’s Bench of Alberta. Following an April 2021 hearing, the RTDRS’ Tenancy Dispute Officer ordered the tenant, Ms. Chisholm, to pay her landlord, Boardwalk, the sum of $2,606.78 for arrears in rent, utilities, and parking, plus $75 in costs. The tenant appealed, but Justice Henderson dismissed her appeal in November 2021. Boardwalk then asked Justice Henderson to award them $4,556.25 in costs for that appeal. Not only did they want costs of $4,556.25 for winning an appeal from a judgment for $2,606.78, they had threatened to ask for costs of $7,087.50 (at para 5g). And they wanted these costs from a tenant whose source of income was Alberta’s Assured Income for the Severally Handicapped (AISH), i.e., a tenant who by definition has a permanent and untreatable medical condition that substantially limits their ability to earn a living (AISH Overview – Eligibility). For people living in privately-owned housing like this tenant, the maximum AISH monthly allowance has been $1,685 for the past two years (AISH Policy Manual). Her rent at Boardwalk was $1,079 per month (para 5b), leaving $606 per month for food, clothing, transportation, and all other needs. Continue reading →

Offers to Settle and The Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

By: Drew Yewchuk & Sarah Shibley

PDF Version: Offers To Settle and the Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

Case Commented On:  Stewart v Toronto (Police Services Board), 2020 ONCA 460 (CanLII)

Stewart v Toronto (Police Services Board), 2020 ONCA 460 (CanLII) is a costs decision that concludes a ten-year legal battle about the power of police to stop and search protestors. Mr. Stewart was successful in obtaining a court decision that the Toronto Police Service (TPS) had violated the Charter by searching him without lawful justification and interfering with his freedom of speech. Despite his success, because of the Toronto Police Service’s $10,000 settlement offer to Mr. Stewart in 2017 and Ontario’s rules for litigation costs and offers to settle, it ultimately cost Mr. Stewart more than $60,000 to successfully enforce his constitutional rights. This post argues that the normal cost rules relating to offers to settle are ill suited to public interest litigation against government bodies.

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Costs Denied in Elder Advocates of Alberta Society Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Costs Denied in Elder Advocates of Alberta Society Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)

In February 2018 and October 2019, we posted comments on the class action litigation in Elder Advocates of Alberta Society v Alberta, where a class of long-term care residents unsuccessfully challenged the Alberta government’s ability to charge accommodation fees in long-term care facilities. The case involved claims of unjust enrichment, negligence and contract – addressed by our colleague Lorian Hardcastle here – and discrimination based on age and mental / physical disability, which we dealt with in our posts. None of the claims were ultimately successful. The plaintiffs’ most persuasive argument was that the imposition of accommodation fees was discriminatory, which was accepted by the Alberta Court of Appeal. However, the Court found the discrimination to be justified (see Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII) and our post on that decision here).

In spite of the lack of success of this class action, Justice June Ross, the trial judge in the case, recently denied the Province of Alberta and Alberta Health Services costs against the plaintiffs and their lawyers (see Elder Advocates of Alberta Society v Alberta, 2020 ABQB 54 (CanLII)). Continue reading →

A Short Comment on the Public Interest Costs Exception

By: Shaun Fluker

PDF Version: A Short Comment on the Public Interest Costs Exception

Case Commented On: Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 254 (CanLII)

The normal rule in Canadian litigation is that costs follow the event, and this is reflected in rules 10.29(1) and 14.88(1) of the Alberta Rules of Court, Alta Reg 124/2010 which state the successful party is entitled to a partial indemnification of its legal costs. In exceptional cases the successful party may be awarded full indemnification (solicitor-client) or no costs at all. An award of costs lies in the discretion of the judge. The public interest exception to the normal costs rule is available to shield the losing party from a costs award, and I discussed this exception at some length in The Public Interest Exception to the Normal Costs Rule in Litigation. For a good overview on costs in public interest environmental litigation see also Costs and Access to Justice in Public Interest Environmental Litigation. This comment touches briefly on the decision by the Court of Appeal to deny an application for the public interest costs exception in Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2018 ABCA 254 (CanLII).

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Costs to the Respondent: Discouraging Habeas Corpus Applications

By: Amy Matychuk

PDF Version: Costs to the Respondent: Discouraging Habeas Corpus Applications

Case Commented On: Voisey v Canada (Attorney General), 2016 ABQB 316 (CanLII)

In Voisey v Canada (Attorney General), 2016 ABQB 316, Justice Crighton of the Alberta Court of Queen’s Bench rejected an application for habeas corpus and awarded $1000 in costs to the respondent. Mr. Voisey, a federal prison inmate, tested positive for drug use and was subsequently involuntarily transferred from a minimum to a medium security prison. He challenged the transfer based on several grounds, alleging it violated sections 1, 7, 12 and 15 of the Charter (at para 10), it was unreasonable because he was not violent, it was based on unproven suspicion, and he should have received the least restrictive measures possible (at para 20). The court found that all his claims were meritless, though it did acknowledge that a few of them met the minimum threshold of being “legitimate grounds” for claiming his reclassification was arbitrary. The court concluded, following Justice Shelley in Rain v Canada (Parole Board), 2015 ABQB 747 that the respondent “incurred significant expenditure for no valid purpose. That makes this a case where a substantial cost award is justified.” (at para 34) It awarded $1000 in costs against Mr. Voisey, to be paid in $5 increments out of his biweekly paycheques of $15, and the remainder to be payable immediately upon his release.

This case raises questions about the fairness and effectiveness of awarding costs against self-represented inmates on unsuccessful habeas corpus applications. Continue reading →