Category Archives: Costs

The Public Interest Exception to the Normal Costs Rule in Litigation

By: Shaun Fluker

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Case Commented On: Gendre v Fort Macleod, 2016 ABQB 111

This judgment by Madam Justice K.D. Nixon touches on the public interest exception to the normal rule in Canadian law that the unsuccessful party in litigation is liable to the successful party for either a portion of or all the successful party’s legal costs (commonly known as ‘costs follow the event’). The substantive matter in this case involved an application by the Mayor of Fort Macleod seeking to have the Court set aside bylaws and resolutions passed by the Council of the Town of Fort Macleod which removed the Mayor’s powers. The Mayor argued the passage of such bylaws and resolutions amounted to an abuse of process by the Council. Justice Nixon dismissed this judicial review application in Gendre v Fort Macleod, 2015 ABQB 623, and the media reported that the Council sought approximately $100,000 in legal costs against the Mayor. One of the arguments put forward by the Mayor in an attempt to shield himself from costs was that his action constituted public interest litigation.

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Costs Not Appropriate in Protection Against Family Violence Act Litigation

By: Jennifer Koshan

PDF Version: Costs Not Appropriate in Protection Against Family Violence Act Litigation

Case Commented On: Denis v Palmer, 2016 ABQB 54 (CanLII)

This is a short comment on a short decision by the Court of Queen’s Bench on whether costs are appropriate in reviews of emergency protection orders (EPOs) under the Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA). The case is rather notorious, as the party seeking costs was Jonathan Denis, former Justice Minister and Solicitor General for Alberta, against whom an EPO was made right before the provincial election last spring. Breanna Palmer, Denis’s former wife, obtained an ex parte EPO from the Provincial Court against Denis and his mother Marguerite on April 25, 2015. Following the review hearing that must be held for all EPOs (see PAFVA s 3), Justice C.M. Jones gave an oral decision on May 4, 2015 in which he rejected the Denises’ request for an order setting aside Palmer’s application before the Provincial Court for an EPO nunc pro tunc (i.e. retroactively); granted their request to abridge the time for service, and revoked the EPO. He left it to the parties to reach an agreement regarding costs, but when they were unable to do so, the Denises brought the costs issue back before Justice Jones.

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Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act

PDF version: Supreme Court Broadly Interprets s. 99(1) of the National Energy Board Act

Case considered: Smith v Alliance Pipeline Ltd., 2011 SCC 7

In Smith v Alliance Pipeline Ltd., 2011 SCC 7 (Smith) all nine judges of the Supreme Court of Canada endorsed a broad view of the power of the federal Pipeline Arbitration Committee (PAC) established under the National Energy Board Act, RSC 1985 c N-7 (NEBA) to award costs to a claimant to an arbitration proceeding. Committee costs may include solicitor-client costs of related litigation. The Court grounded its finding in subsection 99(1) of the NEBA, which if triggered requires a company to pay “all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person’s claim for compensation,” and in the history of statutory reform of the law of expropriation, specifically the principle of full compensation for expropriation. The Court was silent on the Federal Court of Appeal finding that matters for which a committee may award compensation are restricted by section 84 of the NEBA, under which litigation costs are not compensable (Alliance Pipeline Ltd. v Smith, 2009 FCA 110 at para. 55 (Smith FCA)). The impact of Smith may be limited to cases in which compensation awarded by the committee exceeds 85 percent of the value offered by the company, as the statutory basis for the Court’s decision is subsection 99(1), and the subsection is triggered only where the 85 percent threshold is exceeded.

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Interim Costs and Access to Justice at the Supreme Court of Canada

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Case considered: R. v. Caron, 2011 SCC 5

The Supreme Court recently upheld the Alberta Court of Appeal decision in R. v. Caron, 2009 ABCA 34. That decision affirmed the jurisdiction of a superior court to award interim costs for public interest litigation before the provincial court, and found that Caron’s language rights challenge was an appropriate one in which to order interim costs pursuant to the test in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (Okanagan). The Supreme Court’s decision was unanimous (with a majority judgment by Justice Ian Binnie and a concurring judgment by Justice Rosalie Abella), and was welcomed by groups such as the Canadian Civil Liberties Association (CCLA). The CCLA had intervened in the case along with a number of other public interest groups, indicating some anxiety that entitlement to interim costs awards as originally set out in Okanagan may be further restricted by the Supreme Court, a restriction it commenced in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38 (Little Sisters (No.2)).

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Legal costs can be an issue in human rights cases

Case considered: Canadian Human Rights Commission v. Attorney General of Canada, et al., 2009 FCA 309, leave to appeal to Supreme Court of Canada granted, SCC Bulletin April 23, 2010, #33507, 2010 CanLII 20527

PDF version: Legal costs can be an issue in human rights cases

In the past few years, the issue of whether and how much legal costs should be awarded in human rights cases has arisen several times in Alberta (see my post on Boissoin v. Lund, for example). The costs issue has also arisen in a federal human rights case and will soon be addressed by the Supreme Court of Canada.

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