ABKB Case Says McAllister Does Not Mean No Schedule C

Law FirmBow River Law
Subject MatterEmployment and HR, Litigation, Mediation & Arbitration, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
AuthorMr Joel Fairbrother
Published date08 August 2023

In Grimes v Governors of the University of Lethbridge, 2023 ABKB 432 (R.A. Graesser), the Alberta Court of King's Bench interprets the "costs" decision of McAllister v City of Calgary, 2021 ABCA 25 to be more in line with traditional costs cases than it has sometimes been interpreted.

This post is a bit more technical than most of the material we post on, but its a very important case and we decided to leave it technical because simplifying this post in particular would have taken away some of its meaning and made it less useful for practitioners reading it.

Facts

The following were the facts summarized by the ABKB:

  • Austin Grimes (referred to as "Rejeena" throughout the decision) had received a suspension from University of Lethbridge due to a series of communications with a professor Rejeena was unhappy with
  • Rejeena was self-represented
  • Rejeena had brought an application for judicial review to the Court of King's Bench
  • The University of Lethbridge had made a "Calderbank" offer to allow Rejeena to discontinue the judicial review application without costs before it went ahead, and Rejeena rejected that
  • The application for judicial review was unsuccessful. The University of Lethbridge as respondent was successful on every issue, and according to Justice Graesser, there was no merit to any argument Rejeena raised, and it was "not close"
  • Justice Graesser invited the parties to make submissions on "costs", which is the decision summarized in this blog post

Analysis / Conclusion

The U of L argued that since it had made a reasonable Calderbank that was refused, and since the University was entirely successful, Rejeena (the unsuccessful Applicant) should have to pay 70% of its actual legal costs. The U of L relied on the Alberta Court of Appeal decision of McAllister v City of Calgary, 2021 ABCA 25 for the proposition that the purpose of costs awards should be to provide a level of indemnity to the successful party, and that there was little need to refer to Schedule C.

Justice Graesser started out with some comments about how McAllister has typically been interpreted:

[22] McAllister was decided in the period between the Committee recommendations and Government approval and was undoubtedly generated by the growing discontent over use of a tariff that was by then 12 years old. I initially viewed it as a stop-gap to Schedule C being updated. However, in looking at cost claims and awards since then, and case law surrounding McAllister, it appears that McAllister...

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