December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


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

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

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

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

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2022


All common party-party costs awards are intentionally well below full indemnity. Full indemnity (“solicitor-and-client”) costs are something higher and different so full indemnity costs proportional to the moderate amount sued over are an oxymoron, like the Swiss Navy. Or small giants.

Yet a recent decision suggests that courts should not give full-indemnity costs which exceed what is proportional to the amount sued over. More curiously, it says that disproportion wipes out a contract between the parties for full-indemnity costs. See Suri Hldg. v. Jung 2022 ABKB 714, JCC 2101 02252 (Oct 27) (¶’s 59-60). The decision even criticizes significant party-party costs, suggesting that they deter the party wishing to sue who is correct in the lawsuit. Yet binding appellate authority in Alberta says the opposite.

The first explicit reason which the Suri decision advances, is that judges have a wide discretion to choose what costs to award in each individual case. “They are not bound by any contractual arrangement between the parties” (¶ 59). That statement is patently wrong, and not supported by the case law, which is almost all to the contrary. (The Queen’s Bench Sully decision in 2021 briefly says contracts about costs do not bind, but cites only two decisions, which both say the opposite.)

The Suri decision also advances another different and somewhat inconsistent proposition. It suggests that when full-indemnity costs would be disproportionate to the amount sued over, that removes the binding effect of any contract about costs, even a contract for full indemnity costs. For that idea, the Suri decision merely cites two Ontario decisions, and one Alberta decision. The Alberta decision is contrary and binding.

There are many more authorities (a number of them binding) contrary to Suri's suggestions. They are found in the Stevenson & Cote Handbook (R. 10.31 n. I.2(a)(v)). Still more are cited in the decision of Wakeling J. in Alta. Treasury Br. v. 1401057 Alta. (#2) 2015 ABQB 548, 21 Alta LR(6th) 253 (nn. 12, 13).

The only Alberta authority I have found for weighing disproportion between contractual costs and the amount sued over, is one brief phrase in a Court of Appeal decision. The phrase is totally obiter, and contrary to the two earlier decisions which it cites. The other authorities which I have found clearly say two things:

a. Contracts as to costs ordinarily bind, and there is no law or public policy contrary to such contracts.

b. The only 3 exceptions to giving full-indemnity costs contracted for, are litigation misconduct by the party seeking such full indemnity, or harshness by starting unnecessary suits, or spending a lot of time on unnecessary, trivial issues. Or where the losing party seeks to receive full indemnity costs. Some authorities say expressly that mere immoderate amount of costs does not override such a contract

I have found 5 Alberta Court of Appeal decisions supporting what I say above, and the 2015 Alta. Treasury Branch decision by Wakeling J. cites 2 others.

The Suri decision’s poor use of precedent also ignores the basic rule that decisions of the Court of Appeal bind other Alberta courts. This Suri decision was an appeal from a civil Provincial Court decision, and could leave Provincial Court judges (and maybe application judges) in a very embarrassing position.

– 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: or phone 780-424-5345.