Alberta litigants are being slowly starved without noticing it. The proportion of necessary legal expenses which the winner of a lawsuit can recover in costs keeps drying up. There are a dozen reasons for that, some deliberate, some the product of neglect. Many stem from carelessness and ignorance by a number of different groups. It would take too long here to describe all the many branches of willows which are choking the stream.
However, one of the causes of that problem is simple, and readily curable. And it is important here and now, not gradually nor in the future.
All lawyers and judges read Schedule C to the Rules of Court. Many assume that that Schedule must be a command of some legislative body. That is wrong. Usually the Schedule is not mandatory. Indeed, it has no application at all, unless the judge or master awarding costs between two parties remains silent and gives no further details. Then the assessment officer has limited power to depart from Schedule C. That is enacted by Rule 10.41(3)(d). So unless the judge or master is silent, Schedule C is academic and binds no one. Otherwise, the discretion of the judge or master binds.
There is no other Rule which makes Schedule C apply. Indeed, general principles for picking costs are set out in R. 10.33, which Rule does not mention Schedule C. The legislation expressly lets a judge or master award or calculate costs in his or her discretion. Discretion is expressly given by the Court of Queen's Bench Act s. 21, and by the Court of Appeal Act s. 12, and by Rules 10.29(1)(a) and 10.31(6). The judge or master can award costs in any form, without using any tariff: see Rr. 10.31(1)(b), and 10.31(3)(a). The Court has express power to waive R. 10.42. There is an alternative way to allow for 20 years of inflation eroding Schedule C. Instead of adjusting Schedule C amounts, a judge awarded as costs 45% of actual legal fees, in Athabasca Minerals v. Syncrude Can. (#2) 2018 ABQB 551, JCC 1201 13727 (Jul 19 ¶ʼs 58-69, 81).
People sometimes say that there is a presumption that Schedule C governs costs between parties. That is 90% wrong. There is only a presumption that the costs will not be full indemnity, save for serious misconduct, special contracts, expropriation, and the like. But reliance on Schedule C or refusal to depart from it rarely arise in cases where a party seeks full indemnity (from the opponent) for legal bills. And (as noted) if no one does anything else to clarify party-party costs, the assessment officer cannot usually exceed Schedule C. That is all. So if there is a "presumption", it has very narrow scope.
Indeed, even an assessment officer can award fees for services which are not specified or described in Schedule C: see R. 10.41(3)(c). People forget that.
One could cover pages with citations of case law to show that Schedule C never binds a judge. As noted above, careful reading of the Rules confirms that. For case law, it will suffice to cite
Caterpillar Tractor Co. v. Ed Miller Sales & Service (#2) (CA 1998) 216 AR 304 (¶ʼs 6, 8);
Sprung Inst. Structures v. Caswan Env. Services (#2) (CA 1999) 232 AR 336 (¶ 3);
Dechant v. Law Socy. (#3) 2001 ABCA 81, 277 AR 333 (¶ʼs 6, 12, 14, 18),
lv. den. [2001] 3 SCR vi;
Hill v. Hill Fam. Trust 2013 ABCA 313, 561 AR 50 (¶ʼs 11, 38, 40),
lv. den. (SCC 27 Feb. '14);
Bell Mobility v. Anderson (#3) 2015 NWTCA 3, 593 AR 795 (¶ʼs 98, 105, 109);
Boyd v. JBS Foods Can. (#2) 2015 ABCA 191, 602 AR 84 (¶ʼs 4, 12);
RVB Mgmt. v. Rocky Mtn. House (Town) 2015 ABCA 304, 609 AR 55 (¶ʼs 7-13).
– 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.
